(8) RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO BE ELECTED IMMEDIATELY

PRECEDINGTHEELECTION:______Yearsand10Months.

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THATIAMELIGIBLEforsaidOfficeThatIwillsupportanddefendtheConstitutionoftheRepublicof the Philippines and will maintain true faith and allegiance thereto That I will obey the law, rules and decrees promulgated by the duly constituted authorities That the obligation imposed to such is assumed voluntarily, without mental reservation or purpose of evasion, and that the facts therein are truetothebestofmyknowledge.1

OnApril24,1995,MoveMakati,adulyregisteredpoliticalparty,andMateoBedon,ChairmanoftheLAKASNUCD UMDPofBarangayCembo,MakatiCity,filedapetitiontodisqualifyAgapitoA.Aquino2onthegroundthatthelatter lacked the residence qualification as a candidate for congressman which, under Section 6, Art. VI of the 1987 the Constitution,shouldbeforaperiodnotlessthanone(1)yearimmediatelyprecedingtheMay8,1995elections.Thepetition wasdocketedasSPANo.95113andwasassignedtotheSecondDivisionoftheCommissiononElections(COMELEC).

On April 25, 1995, a day after said petition for disqualification was filed, petitioner filed another certificate of candidacyamendingthecertificatedatedMarch20,1995.Thistime,petitionerstatedinItem8ofhiscertificatethat hehadresidedintheconstituencywherehesoughttobeelectedforone(l)yearandthirteen(13)days.3

On May 2, 1995, petitioner filed his Answer dated April 29, 1995 praying for the dismissal of the disqualification case.4

On the same day, May 2, 1995, a hearing was conducted by the COMELEC wherein petitioner testified andhttp://www.lawphil.net/judjuris/juri1995/sep1995/gr_120265_1995.html 1/318/31/2015 G.R. No. 120265

After hearing of the petition for disqualification, the Second Division of the COMELEC promulgated a Resolution datedMay6,1995,thedecretalportionofwhichreads:

WHEREFORE,inviewoftheforegoing,thisCommission(SecondDivision)RESOLVEStoDISMISS the instant: petition for Disqualification against respondent AGAPITO AQUINO and declares him ELIGIBLEtorunfortheOfficeofRepresentativeintheSecondLegislativeDistrictofMakatiCity.

Meanwhile, on May 8, 1995, elections were held. In Makati City where three (3) candidates vied for the congressionalseatintheSecondDistrict,petitionergarneredthirtyeightthousandfivehundredfortyseven(38,547) votes as against another candidate, Agusto Syjuco, who obtained thirty five thousand nine hundred ten (35,910) votes.10

The Executive Director, this Commission, is directed to cause the immediate implementation of this Order. The Clerk of Court of the Commission is likewise directed to inform the parties by the fastest meansavailableofthisOrder,andtocalendarthehearingoftheMotionforReconsiderationonMay 17,1995,at10:00inthemorning,PICCPressCenter,PasayCity.

SOORDERED.11

On May 16, 1995, petitioner filed his Comment/Opposition with urgent motion to lift order of suspension of proclamation.

OnJune1,1995,petitionerfileda"MotiontoFileSupplementalMemorandumandMotiontoResolveUrgentMotion toResolveMotiontoLiftSuspensionofProclamation"whereinhemanifestedhisintentiontoraise,amongothers, the issue of whether of not the determination of the qualifications of petitioner after the elections is lodged exclusively in the House of Representatives Electoral Tribunal pursuant to Section 17, Article VI of the 1987 Constitution.

Pursuant to the said provisions and considering the attendant circumstances of the case, the CommissionRESOLVEDtoproceedwiththepromulgationbuttosuspenditsrules,toacceptthefiling oftheaforesaidmotion,andtoallowthepartiestobeheardthereonbecausetheissueofjurisdiction nowbeforetheCommissionhastobestudiedwithmorereflectionandjudiciousness.12

http://www.lawphil.net/judjuris/juri1995/sep1995/gr_120265_1995.html 2/318/31/2015 G.R. No. 120265 of residence. Consequently, the order of suspension of proclamation of the respondent should he obtain the winning number of votes, issued by this Commission on May 15, 1995 is now made permanent.

Upon the finality of this Resolution, the Board of Canvassers of the City of Makati shall immediately reconveneand,onthebasisofthecompletedcanvassofelectionreturns,determinethewinneroutof theremainingqualifiedcandidates,whoshallbeimmediatelybeproclaimed.

SOORDERED.13

Hence,theinstantPetitionforCertiorari 14 assailing the orders dated May 15, 1995 and June 2, 1995, as well as the resolutiondatedJune2,1995issuedbytheCOMELECenbanc.Petitioner'sraisesthefollowingerrorsforconsideration,to wit:

THE COMELEC HAS NO JURISDICTION TO DETERMINE AND ADJUDGE THE

DISQUALIFICATION ISSUE INVOLVING CONGRESSIONAL CANDIDATES AFTER THE MAY 8, 1995 ELECTIONS, SUCH DETERMINATION BEING RESERVED TO AND LODGE EXCLUSIVELY WITHTHEHOUSEOFREPRESENTATIVEELECTORALTRIBUNAL

ASSUMING ARGUENDO THAT THE COMELEC HAS JURISDICTION, SAID JURISDICTION

CEASED IN THE INSTANT CASE AFTER THE ELECTIONS, AND THE REMEDY/IES AVAILABLE TOTHEADVERSEPARTIESLIE/SINANOTHERFORUMWHICH,ITISSUBMITTED,ISTHEHRET CONSISTENTWITHSECTION17,ARTICLEVIOFTHE1987CONSTITUTION

THE COMELEC COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT PROCEEDED TO

PROMULGATE ITS QUESTIONED DECISION (ANNEX "C", PETITION) DESPITE IT OWN RECOGNITION THAT A THRESHOLD ISSUE OF JURISDICTION HAS TO BE JUDICIOUSLY REVIEWED AGAIN, ASSUMING ARGUENDO THAT THE COMELEC HAS JURISDICTION, THE COMELECCOMMITTEDGRAVEABUSEOFDISCRETION,ANDSERIOUSERRORINDIRECTING WITHOUT NOTICE THE SUSPENSION OF THE PROCLAMATION OF THE PETITIONER AS THE WINNING CONGRESSIONAL CANDIDATE AND DESPITE THE MINISTERIAL NATURE OF SUCH DUTYTOPROCLAIM(PENDINGTHEFINALITYOFTHEDISQUALIFICATIONCASEAGAINSTTHE PETITIONER)IFONLYNOTTOTHWARTTHEPEOPLE'SWILL.

THE COMELEC'S FINDING OF NONCOMPLIANCE WITH THE RESIDENCY REQUIREMENT OF

ONE YEAR AGAINST THE PETITIONER IS CONTRARY TO EVIDENCE AND TO APPLICABLE LAWSANDJURISPRUDENCE.

IN ANY CASE, THE COMELEC CRITICALLY ERRED IN FAILING TO APPRECIATE THE LEGAL IMPOSSIBILITY OF ENFORCING THE ONE YEAR RESIDENCY REQUIREMENT OF CONGRESSIONAL CANDIDATES IN NEWLY CREATED POLITICAL DISTRICTS WHICH WERE ONLYEXISTINGFORLESSTHANAYEARATTHETIMEOFTHEELECTIONANDBARELYFOUR MONTHSINTHECASEOFPETITIONER'SDISTRICTINMAKATIOFCONGRESSIONAL.

THECOMELECCOMMITTEDSERIOUSERRORAMOUNTINGTOLACKOFJURISDICTIONWHEN IT ORDERED THE BOARD OF CANVASSERS TO "DETERMINE AND PROCLAIM THE WINNER OUT OF THE REMAINING QUALIFIED CANDIDATES" AFTER THE ERRONEOUS DISQUALIFICATIONOFYOURPETITIONERINTHATSUCHDIRECTIVEISINTOTALDISREGARD OF THE WELL SETTLED DOCTRINE THAT A SECOND PLACE CANDIDATE OR PERSON WHO WAS REPUDIATED BY THE ELECTORATE IS A LOSER AND CANNOT BE PROCLAIMED AS SUBSTITUTE WINNER.15

http://www.lawphil.net/judjuris/juri1995/sep1995/gr_120265_1995.html 3/318/31/2015 G.R. No. 120265 In his first three assignments of error, petitioner vigorously contends that after the May 8, 1995 elections, the COMELEC lost its jurisdiction over the question of petitioner's qualifications to run for member of the House of Representatives.HeclaimsthatjurisdictionoverthepetitionfordisqualificationisexclusivelylodgedwiththeHouse ofRepresentativesElectoralTribunal(HRET).Giventheyetunresolvedquestionofjurisdiction,petitioneraversthat the COMELEC committed serious error and grave abuse of discretion in directing the suspension of his proclamationasthewinningcandidateintheSecondCongressionalDistrictofMakatiCity.Wedisagree.

Petitioner conveniently confuses the distinction between an unproclaimed candidate to the House of Representatives and a member of the same. Obtaining the highest number of votes in an election does not automaticallyvestthepositioninthewinningcandidate.Section17ofArticleVIofthe1987Constitutionreads:

Undertheabovestatedprovision,theelectoraltribunalclearlyassumesjurisdictionoverallcontestsrelativetothe election, returns and qualifications of candidates for either the Senate or the House only when the latter become membersofeithertheSenateortheHouseofRepresentatives.Acandidatewhohasnotbeenproclaimed 16and whohasnottakenhisoathofofficecannotbesaidtobeamemberoftheHouseofRepresentativessubjecttoSection.17of theConstitution.Whiletheproclamationofawinningcandidateinanelectionisministerial,B.P.881inconjunctionwithSec 6ofR.A.6646allowssuspensionofproclamationundercircumstancesmentionedtherein.Thus,petitioner'scontentionthat "aftertheconductoftheelectionand(petitioner)hasbeenestablishedthewinneroftheelectoralexercisefromthemoment of election, the COMELEC is automatically divested of authority to pass upon the question of qualification" finds no basis, because even after the elections the COMELEC is empowered by Section 6 (in relation to Section 7) of R.A. 6646 to continuetohearanddecidequestionsrelatingtoqualificationsofcandidatesSection6states:

Sec.6.EffectofDisqualificationCase.Anycandidate,whohasbeendeclaredbyfinaljudgmentto bedisqualifiedshallnotbevotedfor,andthevotescastforhimshallnotbecounted.Ifforanyreason acandidateisnotdeclaredbyfinaljudgmentbeforeanelectiontobedisqualifiedandheisvotedfor andreceivesthewinningnumberofvotesinsuchelection,theCourtorCommissionshallcontinuewith the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidatewhenevertheevidenceofguiltisstrong.

Undertheabovequotedprovision,notonlyisadisqualificationcaseagainstacandidateallowedtocontinueafter theelection(anddoesnotousttheCOMELECofitsjurisdiction),buthisobtainingthehighestnumberofvoteswill notresultinthesuspensionorterminationoftheproceedingsagainsthimwhentheevidenceofguiltisstrong.While the phrase "when the evidence of guilt is strong" seems to suggest that the provisions of Section 6 ought to be applicable only to disqualification cases under Section 68 of the Omnibus Election Code, Section 7 of R.A. 6646 allows the application of the provisions of Section 6 to cases involving disqualification based on ineligibility under Section78ofB.P.881.Section7states:

Sec. 7. Petition to Deny Due Course or to Cancel a Certificate of Candidacy. The procedure hereinaboveprovidedshallapplytopetitiontodenyduecoursetoorcancelacertificateofcandidacy basedonSec.78ofBatasPambansa881.

ThedeliberationsoftheConstitutionalCommissionrevealthatthemeaningofresidencevisavis the qualificationsofacandidateforCongresscontinuestoremainthesameasthatofdomicile,towit:

Mr. Nolledo: With respect to Section 5, I remember that in the 1971 Constitutional Convention,therewasanattempttorequireresidenceintheplacenotlessthanoneyear immediatelyprecedingthedayofelections.Somyquestionis:WhatistheCommittee's conceptofdomicileorconstructiveresidence?

Mrs. Rosario Braid: The next question is on section 7, page 2. I think Commissioner Nolledo has raised the same point that "resident" has been interpreted at times as a matterofintentionratherthanactualresidence.

Mr.DelosReyes:ButWemightencountersomedifficultyespeciallyconsideringthatthe provisionintheConstitutionintheArticleonSuffragesaysthatFilipinoslivingabroadmay voteasenactedbylaw.So,wehavetosticktotheoriginalconceptthatitshouldbeby domicile and not physical and actual residence. (Records of the 1987 Constitutional Commission,Vol.II,July22,1986,p.110).

The framers of the Constitution adhered to the earlier definition given to the word "residence" which regardeditashavingthesamemeaningasdomicile.

Clearly,theplace"whereapartyactuallyorconstructivelyhashispermanenthome,"21wherehe,nomatterwherehe maybefoundatanygiventime,eventuallyintendstoreturnandremain,i.e.,hisdomicile,isthattowhichtheConstitution referswhenitspeaksofresidenceforthepurposesofelectionlaw.Themanifestpurposeofthisdeviationfromtheusual conceptionsofresidencyinlawasexplainedinGallegovs.Veraat 22is"toexcludestrangersornewcomersunfamiliarwith theconditionsandneedsofthecommunity"fromtakingadvantageoffavorablecircumstancesexistinginthatcommunityfor electoralgain.Whilethereisnothingwrongwiththepracticeofestablishingresidenceinagivenareaformeetingelection law requirements, this nonetheless defeats the essence of representation, which is to place through the assent of voters thosemostcognizantandsensitivetotheneedsofaparticulardistrict,ifacandidatefallsshortoftheperiodofresidency mandated by law for him to qualify. That purpose could be obviously best met by individuals who have either had actual residenceintheareaforagivenperiodorwhohavebeendomiciledinthesameareaeitherbyoriginorbychoice.Itwould, therefore, be imperative for this Court to inquire into the threshold question as to whether or not petitioner actually was a residentforaperiodofoneyearintheareanowencompassedbytheSecondLegislativeDistrictofMakatiatthetimeofhis electionorwhetherornothewasdomiciledinthesame.

As found by the COMELEC en banc petitioner in his Certificate of Candidacy for the May 11, 1992 elections, indicatednotonlythathewasaresidentofSanJose,Concepcion,Tarlacin1992butthathewasaresidentofthe same for 52 years immediately preceding that election. 23 At the time, his certificate indicated that he was also a registeredvoterofthesamedistrict.24HisbirthcertificateplacesConcepcion,Tarlacasthebirthplaceofbothofhisparents BenignoandAurora.25Thus,fromdatafurnishedbypetitionerhimselftotheCOMELECatvarioustimesduringhispolitical career,whatstandsconsistentlyclearandunassailableisthatthisdomicileoforiginofrecorduptothetimeoffilingofhis mostrecentcertificateofcandidacyforthe1995electionswasConcepcion,Tarlac.

Petitioner's alleged connection with the Second District of Makati City is an alleged lease agreement of condominiumunitinthearea.AstheCOMELEC,initsdisputedResolutionnoted:

TheintentionnottoestablishapermanenthomeinMakatiCityisevidentinhisleasingacondominium unitinsteadofbuyingone.Whilealeasecontractmaybeindicativeofrespondent'sintentiontoreside in Makati City it does not engender the kind of permanency required to prove abandonment of one's originaldomicileespeciallysince,byitsterms,itisonlyforaperiodoftwo(2)years,andrespondent Aquino himself testified that his intention was really for only one (l) year because he has other "residences"inManilaorQuezonCity.26

Whilepropertyownershipisnotandshouldneverbeanindiciaoftherighttovoteortobevotedupon,thefactthat petitioner himself claims that he has other residences in Metro Manila coupled with the short length of time he claimstobearesidentofthecondominiumunitinMakati(andthefact,ofhisstateddomicileinTarlac)"indicatethat thesolepurposeof(petitioner)intransferringhisphysicalresidence" 27isnottoacquire'snewresidenceordomicile "but only to qualify as a candidate for Representative of the Second District of Makati City." 28 The absence of clear and positiveproofshowingasuccessfulabandonmentofdomicileundertheconditionsstatedabove,thelackofidentification sentimental,actualorotherwisewiththearea,andthesuspiciouscircumstancesunderwhichtheleaseagreementwas effectedallbeliepetitioner'sclaimofresidencyfortheperiodrequiredbytheConstitution,intheSecondDistrictofMakati.Ashttp://www.lawphil.net/judjuris/juri1995/sep1995/gr_120265_1995.html 5/318/31/2015 G.R. No. 120265 theCOMELECenbancemphaticallypointedout:

[T]he lease agreement was executed mainly to support the one year residence requirement as a qualificationforacandidateofRepresentative,byestablishingacommencementdateofhisresidence. Ifaperfectlyvalidleaseagreementcannot,byitselfestablishadomicileofchoice,thisparticularlease agreementcannotdobetter.29

Moreover,hisassertionthathehastransferredhisdomicilefromTarlactoMakatiisabareassertionwhichishardly supportedbythefactsinthecaseatbench.Domicileoforiginisnoteasilylost.Tosuccessfullyeffectachangeof domicile, petitioner must prove an actual removal or an actual change of domicile a bona fide intention of abandoningtheformerplaceofresidenceandestablishinganewoneanddefiniteactswhichcorrespondwiththe purpose.30 These requirements are hardly met by the evidence adduced in support of petitioner's claims of a change of domicilefrom Tarlac to the Second District of Makati. In the absence of clear and positive proof, the domicile of origin be deemedtocontinuerequirementsarehardlymetbytheevidenceadducedinsupportofpetitioner'sclaimsofachangeof domicilefromTarlactotheSecondDistrictofMakati.Intheabsenceofclearandpositiveproof,thedomicileoforiginshould bedeemedtocontinue.

Finally,petitioner'ssubmissionthatitwouldbelegallyimpossibletoimposetheoneyearresidencyrequirementina newlycreatedpoliticaldistrictisspeciousandlacksbasisinlogic.Anewpoliticaldistrictisnotcreatedoutofthinair. It is carved out from part of a real and existing geographic area, in this case the old Municipality of Makati. That people actually lived or were domiciled in the area encompassed by the new Second District cannot be denied. Moderndaycarpetbaggerscannotbeallowedtakeadvantageofthecreationofnewpoliticaldistrictsbysuddenly transplanting themselves in such new districts, prejudicing their genuine residents in the process of taking advantage of existing conditions in these areas. It will be noted, as COMELEC did in its assailed resolution, that petitionerwasdisqualifiedfromrunningintheSenatebecauseoftheconstitutionaltwotermlimit,andhadtoshop around for a place where he could run for public office. Nothing wrong with that, but he must first prove with reasonablecertaintythathehaseffectedachangeofresidenceforelectionlawpurposesfortheperiodrequiredby law.Thishehasnoteffectivelydone.

TocontendthatSyjucoshouldbeproclaimedbecausehewasthe"first"amongthequalifiedcandidatesintheMay 8, 1995 elections is to misconstrue the nature of the democratic electoral process and the sociological and psychologicalunderpinningsbehindvoters'preferences.Theresultsuggestedbyprivaterespondentwouldleadnot onlytoourreversingthedoctrinesfirmlyentrenchedinthetwocasesofLabovs.Comelec 31butalsotoamassive disenfranchisementofthethousandsofvoterswhocasttheirvoteinfavorofacandidatetheybelievedcouldbevalidlyvoted for during the elections. Had petitioner been disqualified before the elections, the choice, moreover, would have been different. The votes for Aquino given the acrimony which attended the campaign, would not have automatically gone to second placer Syjuco. The nature of the playing field would have substantially changed. To simplistically assume that the secondplacerwouldhavereceivedtheothervoteswouldbetosubstituteourjudgmentforthemindofthevoter.Thesecond placer is just that, a second placer. He lost the elections. He was repudiated by either a majority or plurality of voters. He couldnotbeconsideredthefirstamongqualifiedcandidatesbecauseinafieldwhichexcludesthedisqualifiedcandidate,the conditionswouldhavesubstantiallychanged.Wearenotpreparedtoextrapolatetheresultsundersuchcircumstances.

Inthesecases,thependulumofjudicialopinioninourcountryhasswungfromoneendtotheother.Intheearly case of Topaciov.Paredes. 32 we declared as valid, votes cast in favor of a disqualified, ineligilble or dead candidate providedthepeoplewhovotedforsuchcandidatebelievedingoodfaiththatatthetimeoftheelectionssaidcandidatewas eitherqualified,eligibleoralive.Thevotescastinfavorofadisqualified,ineligibleordeadcandidatewhoobtainedthenext higher number of votes cannot be proclaimed as winner. According to this Court in the said case, "there is not, strictly speaking,acontest,thatwreathofvictorycannotbetransferredfromanineligiblecandidatetoanyothercandidatewhenthe solequestionistheeligibilityoftheonereceivingthepluralityofthelegallycastballots."

TheninTicsonv.Comelec,33thisCourtheldthatvotescastinfavorofanoncandidateinviewofhisunlawfulchangeof partyaffiliation(whichwasthenagroundfordisqualification)cannotbeconsideredinthecanvassingofelectionreturnsand thevotesfallintothecategoryofinvalidandnonexistentvotesbecauseadisqualifiedcandidateisnocandidateatallandis not a candidate in the eyes of the law. As a result, this Court upheld the proclamation of the only candidate left in the disputedposition.

[I]t would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed a winner

http://www.lawphil.net/judjuris/juri1995/sep1995/gr_120265_1995.html 6/318/31/2015 G.R. No. 120265 and imposed as the representative of a constituency, the majority of which have positively declared throughtheirballotsthattheydonotchoosehim.

Sound policy dictates that public elective offices are filled by those who have received the highest numberofvotescastintheelectionforthatoffice,anditisfundamentalideainallrepublicanformsof governmentthatnoonecanbedeclaredelectedandnomeasurecanbedeclaredcarriedunlessheor itreceivesamajorityorpluralityofthelegalvotescastintheelections.(20CorpusJuris2nd,S243,p. 676.)

However,inSantosv.Comelec 35wemadeaturnaboutfromourpreviousrulinginGeronimov.Ramosandpronounced that "votes cast for a disqualified candidate fall within the category of invalid or nonexistent votes because a disqualified candidateisnocandidateatallintheeyesofthelaw,"revertingtoourearlierrulinginTicsonv.Comelec.

In the more recent cases of Labo, Jr. v. Comelec 36 Abella v. Comelec 37 and Benito v. Comelec, 38 this Court reiterated and upheld the ruling in Topacio v. Paredes and Geronimo v. Ramos to the effect that the ineligibility of a candidatereceivingthenexthighernumberofvotestobedeclaredelected,andthataminorityordefeatedcandidatecannot bedeclaredelectedtotheoffice.Inthesecases,weputemphasisonourpronouncementinGeronimov.Ramosthat:

Thefactthatacandidatewhoobtainedthehighestnumberofvotesislaterdeclaredtobedisqualified or not eligible for the office to which he was elected does not necessarily entitle the candidate who obtainedthesecondhighestnumberofvotestobedeclaredthewinneroftheelectiveoffice.Thevotes cast for a dead, disqualified, or noneligible person may be valid to vote the winner into office or maintainhimthere.However,intheabsenceofastatutewhichclearlyassertsacontrarypoliticaland legislative policy on the matter, if the votes were cast in sincere belief that candidate was alive, qualified,oreligibletheyshouldnotbetreatedasstray,voidormeaningless.

WhileOrtegamayhavegarneredthesecondhighestnumberofvotesfortheofficeofcitymayor,the factremainsthathewasnotthechoiceofthesovereignwill.PetitionerLabowasoverwhelminglyvoted bytheelectoratefortheofficeofmayorinthebeliefthathewasthenqualifiedtoservethepeopleof Baguio City and his subsequent disqualification does not make respondent Ortega the mayorelect. This is the import of the recent case of Abellav. Comelec (201 SCRA 253 [1991]), wherein we held that:

While it is true that SPC No. 88546 was originally a petition to deny due course to the certificateofcandidacyofLarrazabalandwasfiledbeforeLarrazabalcouldbeproclaimed thefactremainsthatthelocalelectionsofFeb.1,1988intheprovinceofLeyteproceeded withLarrazabalconsideredasabonafidecandidate.Thevotersoftheprovincevotedfor her in the sincere belief that she was a qualified candidate for the position of governor. Her votes was counted and she obtained the highest number of votes. The net effect is thatpetitionerlostintheelection.Hewasrepudiatedbytheelectorate...Whatmattersis thatintheeventacandidateforanelectedpositionwhoisvotedforandwhoobtainsthe highest number of votes is disqualified for not possessing the eligibility, requirements at thetimeoftheelectionasprovidedbylaw,thecandidatewhoobtainsthesecondhighest number of votes for the same position cannot assume the vacated position. (Emphasis supplied).

Our ruling in Abella applies squarely to the case at bar and we see no compelling reason to depart therefrom.LikeAbella,petitionerOrtegalostintheelection.Hewasrepudiatedbytheelectorate.He wasobviouslynotthechoiceofthepeopleofBaguioCity.

Finally,thereisthequestionofwhetherornottheprivaterespondent,whofiledthequo warrantopetition, can replace the petitioner as mayor. He cannot. The simple reason is that as he obtained only the second highest number of votes in the election, he was obviouslynotthechoiceofthepeopleofBaguioCity.

The latest ruling of the Court in this issue is Santos v. Commission on Election, (137 SCRA 740) decided in 1985. In that case, the candidate who placed second washttp://www.lawphil.net/judjuris/juri1995/sep1995/gr_120265_1995.html 7/318/31/2015 G.R. No. 120265 proclaimedelectedafterthevotesforhiswinningrival,whowasdisqualifiedasaturncoat and considered a noncandidate, were all disregarded as stray. In effect, the second placerwonbydefault.ThatdecisionwassupportedbyeightmembersoftheCourtthen (Cuevas J., ponente, with Makasiar, Concepcion, Jr., Escolin, Relova, De la Fuente, Alampay, and Aquino, JJ., concurring) with three dissenting (Teehankee, acting C.J., Abad Santos and MelencioHerrera) and another two reserving their votes (Plana and Gutierrez,Jr.).Onewasonofficialleave(Fernando,C.J.)

Reexamining that decision, the Court finds, and so holds, that it should be reversed in favor of the earliercaseofGeronimov.Santos(136SCRA435),whichrepresentsthemorelogicalanddemocratic rule.Thatcase,whichreiteratedthedoctrinefirstannouncedin1912inTopaciovs.Paredes(23Phil. 238)wassupportedbytenmembersoftheCourt....

Therule,therefore,is:theineligibilityofacandidatereceivingmajorityvotesdoesnotentitletheeligible candidate receiving the next highest number of votes to be declared elected. A minority or defeated candidatecannotbedeemedelectedtotheoffice.

Itisthereforeincorrecttoarguethatsinceacandidatehasbeendisqualified,thevotesintendedforthe disqualified candidate should, in effect, be considered null and void. This would amount to disenfranchisingtheelectorateinwhom,sovereigntyresides.Attheriskofbeingrepetitious,thepeople of Baguio City opted to elect petitioner Labo bona fide without any intention to missapply their franchise,andinthehonestbeliefthatLabowasthenqualifiedtobethepersontowhomtheywould entrusttheexerciseofthepowersofthegovernment.Unfortunately,petitionerLaboturnedouttobe disqualifiedandcannotassumetheoffice.

Whether or not the candidate whom the majority voted for can or cannot be installed, under no circumstances can a minority or defeated candidate be deemed elected to the office. Surely, the 12,602votescastforpetitionerOrtegaisnotalargernumberthanthe27,471votescastforpetitioner Labo(ascertifiedbytheElectionRegistrarofBaguioCityrollo,p.109G.R.No.105111).

This, it bears repeating, expresses the more logical and democratic view. We cannot, in another shift of the pendulum,subscribetothecontentionthattherunnerupinanelectioninwhichthewinnerhasbeendisqualifiedis actually the winner among the remaining qualified candidates because this clearly represents a minority view supported only by a scattered number of obscure American state and English court decisions. 40 These decisions neglect the possibility that the runnerup, though obviously qualified, could receive votes so measly and insignificant in number that the votes they receive would be tantamount to rejection. Theoretically, the "second placer" could receive just onevote.Insuchacase,itisabsurdtoproclaimthetotallyrepudiatedcandidateasthevoters'"choice."Moreover,evenin instanceswherethevotesreceivedbythesecondplacermaynotbeconsiderednumericallyinsignificant,voterspreferences are nonetheless so volatile and unpredictable that the result among qualified candidates, should the equation change becauseofthedisqualificationofanineligiblecandidate,wouldnotbeselfevident.Absenceoftheapparentthoughineligible winneramongthechoicescouldleadtoashiftingofvotestocandidatesotherthanthesecondplacer.Byanymathematical formulation,therunnerupinanelectioncannotbeconstruedtohaveobtainedamajorityorpluralityofvotescastwherean "ineligible"candidatehasgarneredeitheramajorityorpluralityofthevotes.

Infine,weareleftwithnochoicebuttoaffirmtheCOMELEC'sconclusiondeclaringhereinpetitionerineligiblefor the elective position of Representative of Makati City's Second District on the basis of respondent commission's findingthatpetitionerlackstheoneyearresidenceinthedistrictmandatedbythe1987Constitution.Ademocratic governmentisnecessarilyagovernmentoflaws.Inarepublicangovernmentthoselawsarethemselvesordained by the people. Through their representatives, they dictate the qualifications necessary for service in government positions.AndaspetitionerclearlylacksoneoftheessentialqualificationsforrunningformembershipintheHouse of Representatives, not even the will of a majority or plurality of the voters of the Second District of Makati City wouldsubstituteforarequirementmandatedbythefundamentallawitself.

WHEREFORE,premisesconsidered,theinstantpetitionisherebyDISMISSED.OurOrderrestrainingrespondent COMELEC from proclaiming the candidate garnering the next highest number of votes in the congressional electionsfortheSecondDistrictofMakatiCityismadePERMANENT.

IagreewiththeconclusionreachedbythemajoritythatpetitionerAquinohasnotshownbyclearandconvincing evidencethathehadestablishedhisresidenceintheseconddistrictofMakatiCityforaperiodofnotlessthanone (1) year prior to the 8 May 1995 elections. However, I do not fully subscribe to its proposition that petitioner's residence(inMakati)shouldbehis"domicileofchoice".

ArticleVI,Section6oftheConstitutionprovidesthat:

NopersonshallbeamemberoftheHouseofRepresentativesunlessheisanaturalborncitizenofthe Philippinesandonthedayoftheelection,isatleasttwentyfiveyearsofage,abletoreadandwrite, and,exceptthepartylistrepresentatives,aregisteredvoterinthedistrictinwhichheshallbeelected, and a resident thereof for a period of not less than one year immediately preceding the day of the election.(emphasissupplied).

InG.R.No.119976,Marcosvs.Comelec,Ihavemaintainedthatthephrase"aresidentthereofforaperiodofnot lessthanoneyear"meansactualand physical presence in the legislative district of the congressional candidate, and that said period of one year must be satisfied regardless of whether or not a person's residence or domicile coincides.

PetitionerevidentlywantstoimpresstheCourtthathisotherresidencesinMetroManilacouldneverhavebecome hisdomicileofchoicebecauseitneverenteredhismindandsuddenly,seeminglynotcontentedwiththeseother residences, he rents a condominium unit in Makati, and calls it his domicile of choice all these without adding clearandconvincingevidencethathedidactuallyliveandresideinMakatiforatleastoneyearpriorto8May1995 andthathenolongerlivedandresidedinhisotherresidencesduringsaidoneyearperiod.

It follows, likewise, that the lease contract relied upon by petitioner, standing alone, established only the alleged date (April 25, 1994) of its due execution. Stated otherwise, the lease contract tells us that petitioner had been leasing a condominium unit in Makati City for more than a year prior to 8 May 1995, but it does not prove that petitioneractuallyandphysicallyresidedthereinforthesameperiod,inthelightofhisadmissionthathemaintained otherresidencesinMetroManila.

Sec.6.EffectofDisqualificationCase.Anycandidatewhohasbeendeclaredbyfinaljudgmentto bedisqualifiedshallnotbevotedfor,andthevotescastforhimshallnotbecounted.Ifforanyreason acandidateisnotdeclaredbyfinaljudgmentbeforeanelectiontobedisqualifiedandheisvotedfor andreceivesthewinningnumberofvotesinsuchelection,theCourtorCommissionshallcontinuewith the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidatewhenevertheevidenceofhisguiltisstrong.

Therecanbenodisputethatifafinaljudgmentisrenderedbeforetheelection,declaringaparticularcandidateas disqualified, such disqualified candidate shall not be voted for and votes cast for him shall not be counted, thus

http://www.lawphil.net/judjuris/juri1995/sep1995/gr_120265_1995.html 9/318/31/2015 G.R. No. 120265 posing no problem in proclaiming the candidate who receives the highest number of votes among the qualified candidates.

Butwhataboutaftertheelection?Sec.6appearscategoricalenoughinstating:"ifanyreason"nofinaljudgmentof disqualificationisrenderedbeforetheelections,andthecandidatefacingdisqualificationisvotedforandreceives thewinningnumberofvotes,theComelecortheCourtisnotoustedofitsjurisdictiontohearandtrythecaseupto final judgment, hence, the power to even suspend the proclamation of the erstwhile winning candidate when evidenceofhisguiltisstrong.

Whathappensthenwhenaftertheelectionsareover,oneisdeclareddisqualified?Then,votescastfor him "shall not be counted" and in legal contemplation, he no longer received the highest number of votes.

It stands to reason that Section 6 of RA 6646 does not make the second placer the winner simply becausea"winningcandidateisdisqualified,"butthatthelawconsidershimasthecandidatewhohad obtained the highest number of votes as a result of the votes cast for the disqualified candidate not beingcountedorconsidered.

Iconcurwiththewellwrittenponenciaofmymostesteemedcolleague,Mr.JusticeKapunan.Iwish,however,to express my views on some issues raised by the petitioner, viz., (1) jurisdiction over the disqualification suit, (2) domicile,(3)theoryoflegalimpossibility,and(4)"secondplacerrule".

PetitioneremphaticallymaintainsthatonlytheHouseofRepresentativesElectoralTribunal(HRET)candeclarehis disqualification, especially after the elections. To bolster this stand, the cases of Co v. HRET, 199 SCRA 692 (1991)Roblesv.HRET,181SCRA780(1990)Lazatinv.HRET,168SCRA391(1988)andLachicav.Yap, 25 SCRA140(1968),havebeencitedassupportingauthorities.Tomymind,thispositionisuntenable.Section17of ArticleVIofthe1987ConstitutionisclearandunambiguousthatHRETjurisdictionappliesonlytothemembersof theHouseofRepresentatives.Theoperativeactsnecessaryforanelectoralcandidate'srightfulassumptionofthe office for which he ran are his proclamation and his taking an oath of office. Petitioner cannot in anyway be consideredasamemberoftheHouseofRepresentativesforthepurposeofdivestingtheCommissiononElections ofjurisdictiontodeclarehisdisqualificationandinvokinginsteadHRET'sjurisdiction,itindubitablyappearingthathe hasyettobeproclaimed,muchlesshashetakenanoathofoffice.Clearly,petitioner'srelianceontheaforecited cases which when perused involved Congressional members, is totally misplaced, if not wholly inapplicable. That the jurisdiction conferred upon HRET extends only to Congressional members is further established by judicial notice of HRET Rules of procedure, 1 and HRET decisions 2 consistently holding that the proclamation the essential requisitevestingjurisdictionontheHRET.

Moreover,aperusaloftherecordsshowsthatthequestiononCOMELEC'sjurisdictionisnowbarredbyestoppel.It istobenotedthatinhisMay2,1995Answer,aswellasinhisMemorandumandSupplementalMemorandumfiled before the COMELEC's Second Division, petitioner never assailed COMELEC's lacks of jurisdiction to rule on his qualification. On the contrary, he asked that the disqualification suit against him be dismissed on the following grounds: that it was filed outside the reglementary period that the one year residence requirement of the 1987 Constitution is inapplicable due to the recent conversion of the municipality of Makati into a city under R.A. No. 7854thathecommittedasimpleinadvertenceinfilinguphiscertificateofcandidacythattheproperprocedureto attack his qualification is by aquowarranto proceeding that he had actually and physically resided in Makati for

http://www.lawphil.net/judjuris/juri1995/sep1995/gr_120265_1995.html 10/318/31/2015 G.R. No. 120265 more than a year and for lack of merit, the case should be outrightly dismissed. In a hearing conducted by the COMELEC on May 2, 1995, petitioner even submitted his evidence (e.g. affidavits, amended certificate of candidacy,copyoftheleasecontract)toprovethatheisqualifiedfortheposition.Subsequently,onMay16,1995, inresponsetotheCOMELECEnBanc'sMay15,1995Ordersuspendingtheproclamationofthewinner,petitioner filedhisComment/OppositionwithUrgentMotionToLiftOrderofSuspensionofProclamationaskingfortheliftingof theCOMELEC'sorderofsuspension.OnMay19,1995,petitioneragainfiledaMemorandumandaverredthatthe recent conversion of Makati into a city made the oneyear residence requirement inapplicable that he resided in Makatiformorethanayearthatquowarrantoistherightremedytoquestionhisqualification.Inpassing,petitioner also alleged that the issue on his qualification should be "properly" ventilated in a fulldress hearing before the HRET, albeit praying for the dismissal of the motion for reconsideration for utter lack of merit (and not for lack of jurisdiction),andforliftingthesuspensionofhisproclamation.ItwasonlyonJune01,1995,inhisMotiontoFile Supplemental Memorandum and Urgent Motion to Resolve Motion to Lift Suspension of Proclamation, when the petitioner raised COMELEC's alleged lack of jurisdiction to resolve the question on his qualification. Clearly then, petitioner has actively participated in the proceedings both before the COMELEC's Second Division and the COMELECEnBancaskingthereinaffirmativereliefs.Thesettledruleisthatapartywhoobjectstothejurisdiction ofthecourtandallegesatthesametimeanynonjurisdictionalgroundfordismissingtheactionisdeemedtohave submitted himself to the jurisdiction of the court.3 Where a party voluntary submits to the jurisdiction of the court and thereafter loses on the merits, he may not thereafter be heard to say that the court had no jurisdiction. 4 In Jimenez v. Macaraig,5theCourt,citingCrisostomov. Court of Appeals, 32 SCRA 54, 60 (1970), elaborated on the rationale for this doctrineinthiswise:

Thepetitioners,toborrowthelanguageofMr.JusticeBautistaAngelo(Peoplevs.Archilla,G.R.No.L 15632,February28,1961,1SCRA699,700701),cannotadoptapostureofdoubledealingwithout running afoul of the doctrine of estoppel. The principle of estoppel is in the interest of a sound administration of the laws. It should deter those who are disposed to trifle with the courts by taking inconsistent positions contrary to the elementary principles of right dealing and good faith (People v. Acierto,92Phil.534,541,[1953]).6

It is not right for a party who has affirmed and invoked the jurisdiction of a court in a particular matter to secure an affirmative relief to afterwards deny that same jurisdiction to escape an adverse decision. 7 Perforce,petitioner'sasseverationthattheCOMELEChasnojurisdictiontoruleonhisqualificationmustfail.

Petitionerinsiststhatdomicileisamatterofpersonalintention.Thus,petitionassertsthatifhedecidestotransfer hislegalresidencesohecanqualifyforpublicofficethenheisentirelyfreetodoso.Thusargumenttoholdwater, mustbesupportedbyaclearandconvincingproofsthatpetitionerhaseffectivelyabandonedhisformerdomicile and that his intention is not doubtful. Indeed, domicile once established is considered to continue and will not be deemedlostuntilanewoneisestablished(Cov.ElectoralTribunalHouseofRepresentatives,199SCRA692,711 [1991]).PetitionerfromchildhooduntilhislastelectionassenatorhasconsistentlymaintainedConcepcion,Tarlac, ashisdomicile.HemovedtoAmapolaStreet,PalmVillage,Makati,andthereafterclaimedthesametobehisnew domicile.Thisclaim,however,isdismallyunsupportedbytherecords.Theleasecontractenteredintobypetitioner foraperiodoftwoyearsonthethirdfloorcondominiumunitinPalmVillage,Makati,inmyview,doesnotprovehis intenttoabandonhisdomicileoforigin.Theintentiontoestablishdomicilemustbeanintentiontoremainindefinitely orpermanentlyinthenewplace.8Thiselementislackinginthisinstance.Worse,publicrespondentCommissioneven found that "respondent Aquino himself testified that his intention was really for only one (1) year because he has other 'residences'inManilaorinQuezonCity([citing]TSN,May2,1995, p.92)".9Notingthatpetitionerisalreadybarredfromrunningforsenatorduetotheconstitutionalconsecutivetwotermlimit, hissearchforaplacewherehecouldfurtherandcontinuehispoliticalcareerandsuddentransfertheretomakehisintent suspect.Thebesttestofintentiontoestablishlegalresidence comesfromone'sactsandnotbymeredeclarationsalone. 10Toacquire,oreffectachangeofdomicile,theintentionmust bebonafideand unequivocal (28 C.J.S. 11). Petitioner, in my view, miserably failed to show a bonafideand unequivocal intentiontoeffectthechangeofhisdomicile.

The theory of legal impossibility is advanced to justify noncompliance with the constitutional qualification on residency.Petitionerexplainshistheoryinthiswise:

. . . THE COMELEC CRITICALLY ERRED IN FAILING TO APPRECIATE THE LEGAL

IMPOSSIBILITY OF ENFORCING THE ONE YEAR RESIDENCY REQUIREMENT OF CONGRESSIONAL CANDIDATES IN NEWLY CREATED POLITICAL DISTRICTS WHICH WERE ONLYEXISTINGFORLESSTHANAYEARATTHETIMEOFTHEELECTIONANDBARELYFOUR MONTHSINTHECASEOFPETITIONER'SDISTRICTINMAKATI.11

Apparently,thistheoryisanoffshootofRepublicAct.No.7854,anactconvertingthemunicipalityofMakati intoahighlyurbanizedcity.ThislawenactedonJanuary2,1995,establishedasecondCongressionaldistrict in Makati in which petitioner ran as a Congressional candidate. Since the second district, according to petitioner, is barely four (4) months old then the one (1) year residence qualification provided by the

http://www.lawphil.net/judjuris/juri1995/sep1995/gr_120265_1995.html 11/318/31/2015 G.R. No. 120265 Constitution is inapplicable. Petitioner's acts, however, as borne by the records, belie his own theory. Originally,heplacedinhiscertificateofcandidacyanentryoften(10)monthsresidenceinMakati.Petitioner then had it amended to one (1) year and thirteen (13) days to correct what claims as a mere inadvertent mistake.Idoubtthesincerityofthisrepresentation.Ifpetitionerisindeedpersuadedbyhisowntheory,the ten months residence he initially wrote would have more than sufficiently qualified him to run in the barely fourmonth old Makati district. The amendment only reveals the true intent of petitioner to comply with one year constitutional requirement for residence, adding an extra thirteen (13) days full measure. Petitioner apparentlywantedtoargueoneway(theoryoflegalimpossibility),butatthesametimeplayeditsafeinthe other (the constitutional one year residence requirement). And that is not all. If we were to adhere to petitioner's theory of legal impossibility, then residents in that district shorn of the constitutional six months residence requirement for prospective voters (Article V, Section 1 of the 1987 Constitution) would have certainlyqualifiedtovote.Thatwouldhavelegitimizedtheentryandelectoralexerciseofflyingvotersone of the historic nemeses of a clean and honest election. Furthermore, to subscribe to petitioner's contention that the constitutional qualification of candidates should be brushed aside in view of the enactment of R.A. No.7854willindubitablyviolatethemannerandprocedurefortheamendmentorrevisionoftheconstitution outlinedunderArticleXVIIIofthe1987Constitution.Alegislativeenactment,ithastobeemphasized,cannot render nugatory the constitution. The constitution is superior to a statute. It is the fundamental and organic lawofthelandtowhicheverystatutemustconformandharmonize.

Finally,ithasbeencontendedthatasecondplacecandidatecannotbeproclaimedasubstitutewinner.Ifindthe proposition quite unacceptable. A disqualified "candidate" is not a candidate and the votes which may have been cast in his favor are nothing but stray votes of no legal consequence. A disqualified person like the petitioner receivesnovoteorzerovote.Inshort, nocandidatenovote.Petitionerhadthereforenoright,infactandinlaw,toclaimfirstplaceforhehasnothingto basehisright.ThelegislativeintentisclearasprovidedbyR.A.6646,Section6,inthatvotescastforadisqualified candidateshallnotbecountedastheyareconsideredstray(Section211,Rule24,OmnibusElectionCode).Itis only from the ranks of qualified candidates can one be chosen as first placer and not from without. Necessarily, petitioner, a disqualified candidate, cannot be a first placer as he claims himself to be. To count the votes for a disqualifiedcandidatewould,inmyview,disenfranchisevoterswhovotedforaqualifiedcandidate.Legitimatevotes castforaqualifiedcandidateshouldnotbepenalizedalongsideadisqualifiedcandidate.Withthisinmind,theother qualifiedcandidatewhogarneredthehighestnumberofvotesshouldbeproclaimedthedulyelectedrepresentative ofthedistrict.IfeelthattheLabodoctrineoughttobeabandoned.

I therefore vote to deny the petition and to lift the temporary restraining order issued by the Court dated June 6, 1995.

DAVIDE,JR.,J.,dissenting:

In sustaining the COMELEC's acts of suspending the proclamation of petitioner Agapito A. Aquino and of proceedingtohearthedisqualificationcaseagainsthim,themajorityopinionreliesonSection6ofR.A.No.6646 which it claims to be applicable by virtue of Section 7 thereof to petitions to deny due course to or cancel a certificateofcandidacyunderSection78oftheOmnibusElectionCode(B.P.Blg.881).

Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusivelyonthegroundthatanymaterialrepresentationcontainedthereinasrequiredunderSection 74hereofisfalse.Thepetitionmaybefiledatanytimenotlaterthantwentyfivedaysfromthetimeof the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later thanfifteendaysbeforetheelection.(emphasissupplied)

Nowhere in the petition in SPA No. 95113 is it alleged by the private respondents that a material representation containedinthepetitioner'scertificateofcandidacyisfalse.Whatisbeingattackedthereinisthepetitioner'slackof the oneyear residence qualification in the new Second Legislative District of Makati City where he sought to he electedfortheofficeofCongressman.

The rule governing disqualification cases on the ground of ineligibility, which is also invoked by the private respondents,isRule25oftheCOMELECRulesofProcedure,asamendedon15February1993.Theamendment allowsthe,filingofapetitiontodisqualifyacandidateonthegroundthathedoesnotpossessallthequalifications provided for by the Constitution or by existing laws. In its original form, the rule only applied to petitions for disqualificationbasedonthecommissionofanyactdeclaredbylawtobeagroundfordisqualification.Theruleashttp://www.lawphil.net/judjuris/juri1995/sep1995/gr_120265_1995.html 12/318/31/2015 G.R. No. 120265 thusamendednowreadsasfollows:

Rule25DisqualificationofCandidates

Sec.1.GroundsforDisqualification.Anycandidatewhodoesnotpossessallthequalificationsofa candidateasprovidedforbytheConstitutionorbyexistinglaw or who commits any act declared by lawtobegroundsfordisqualificationmaybedisqualifiedfromcontinuingasacandidate.

Sec. 2. Who May File Petition for Disqualification. Any citizen of voting age, or duly registered political party, organization or coalition of political parties may file with the Law Department of the Commissionapetitiontodisqualifyacandidateongroundsprovidedbylaw.

Sec. 3. Period to File Petition. The petition shall be filed any day after the last day for filing of certificatesofcandidacybutnotlaterthanthedateofproclamation.

Sec. 5. Effect of Petition if Unresolved Before Completion of Canvass. If the petition, for reasons beyond the control of the Commission, cannot be decided before the completion of the canvass, the votescastfortherespondentmaybeincludedinthecountingandinthecanvassinghowever,ifthe evidence of guilt is strong, his proclamation shall be suspended notwithstanding the fact that he receivedthewinningnumberofvotesinsuchelection.

Rule25oftheComelecRulesofProcedurereferstoDisqualificationofCandidatesandSection1of said rule provides that any candidate who commits any act declared by law to be a ground for disqualificationmaybedisqualifiedfromcontinuingasacandidate.Thegroundsfordisqualificationas expressedinSections12and68oftheCode,arethefollowing:

Sec. 12. Disqualification. Any person who has been declared by competent authority insane or incompetent, or has been sentenced by final judgment for subversion, insurrection,rebellionorforanyoffenseforwhichhehasbeensentencedtoapenaltyof morethaneighteenmonthsorforacrimeinvolvingmoralturpitude,shallbedisqualifiedto be a candidate and to hold any office, unless he has been given plenary pardon or grantedamnesty.

Sec.63DisquaIifications.Anycandidatewho,inanactionorprotestinwhichheisa party is declared by final decision of 4 competent court guilty of, or found by the Commissionofhaving(a)givenmoneyorothermaterialconsiderationtoinfluence,induce orcorruptthevotersorpublicofficialsperformingelectoralfunctions(b)committedactsof terrorism to enhance his candidacy (c) spent in his election campaign an amount in excess of that allowed by this Code (d) solicited, received or made any contribution prohibitedunderSections89,95,96,97and104or(e)violatedanyofSections80,83, 85,86and261,paragraphsd,e,k,v,andcc,subparagraph6,shallbedisqualifiedfrom continuingasacandidate,orifhehasbeenelected,fromholdingtheoffice.Anyperson whoisapermanentresidentoforanimmigranttoaforeigncountryshallnotbequalified torunforanyelectiveofficeunderthisCode,unlesssaidpersonhaswaivedhisstatusas permanent resident or immigrant of a foreign country in accordance with the residence requirementprovidedforintheelectionlaws.

ThepetitionfiledbyprivaterespondentUtutalumwiththerespondentComelectodisqualifypetitioner Loongonthegroundthatthelattermadeafalserepresentationinhiscertificateofcandidacyastohis age, clearly does not fall under the grounds of disqualification as provided for in Rule 25 but is expressly covered by Rule 23 of the Comelec Rules of Procedure governing petitions to cancel certificateofcandidacy.Moreover,Section3,Rule25whichallowsthefilingofthepetitionatanytime afterthelastdayforthefilingofcertificatesofcandidacybutnotlaterthanthedateofproclamation,is merelyaproceduralruleissuedbyrespondentCommissionwhich,althoughaconstitutionalbody,has nolegislativepowers.Thus,itcannotsupersedeSection78oftheOmnibusElectionCodewhichisa

Sec.6.EffectofDisqualificationCase.Anycandidatewhohasbeendeclaredbyfinaljudgmentto bedisqualifiedshallnotbevotedfor,andthevotescastforhimshallnotbecounted.Ifforanyreason acandidateisnotdeclaredbyfinaljudgmentbeforeanelectiontobedisqualifiedandheisvotedfor andreceivesthewinningnumberofvotesinsuchelection,theCourtorCommissionshallcontinuewith the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidatewhenevertheevidenceofhisguiltisstrong.

Sec. 71 Petition to Deny Due Course to or Cancel a Certificate of Candidacy. The procedure hereinaboveprovidedshallapplytopetitionstodenyduecoursetoorcancelacertificateofcandidacy asprovidedinSection78ofBatasPambansaBlg.881.

The"procedurehereinaboveprovided"mentionedinSection7cannotbeconstruedtorefertoSection6whichdoes not provide for a procedure but for the EFFECTS of disqualification cases. It can only refer to the procedure providedinSection5ofthesaidActonnuisancecandidateswhichreadsasfollows:

(b) Within three (3) days from the filing of the petition, the Commission shall issue summons to the respondentcandidatetogetherwithacopyofthepetitionanditsenclosures,ifany.

(c)Therespondentshallbegiventhree(3)daysfromreceiptofthesummonswithinwhichtofilehis verified answer (not a motion to dismiss) to the petition, serving copy thereof upon the petitioner. Groundsforamotiontodismissmayberaisedasaffirmativedefenses.

(d)TheCommissionmaydesignateanyofitsofficialswhoarelawyerstohearthecaseandreceive evidence.Theproceedingshallbesummaryinnature.Inlieuoforaltestimonies,thepartiesmaybe requiredtosubmitpositionpaperstogetherwithaffidavitsorcounteraffidavitsandotherdocumentary evidence. The hearing officer shall immediately submit to the Commission his findings, reports, and recommendations within five (5) days from the completion of such submission of evidence. The Commissionshallrenderitsdecisionwithinfive(5)daysfromreceiptthereof.

(e) The decision, order, or ruling of the Commission shall, after five (5) days from receipt of a copy thereofbytheparties,befinalandexecutoryunlessstayedbytheSupremeCourt.

(f)TheCommissionshallwithintwentyfourhours,throughthefastestavailablemeans,disseminateits decision or the decision of the Supreme Court or the city or municipal election registrars, boards of electioninspectors,andthegeneralpublicinthepoliticalsubdivisionconcerned.

andwhichistheonlyprocedurethatprecedesSection7ofthesaidAct.Heretofore,nolawprovidedforthe proceduretogoverncasesunderSection78.Applyingtosuchcases,throughSection7ofR.A.No.6646,the procedureapplicabletocasesofnuisancecandidatesisprudentandwise,forbothcasesnecessarilyrequire that they be decided before the day of the election hence, only summary proceedings thereon can adequatelyrespondtotheurgencyofthematter.

Anycandidatewhohasbeendeclaredbyfinaljudgmenttobedisqualifiedshallnotbevotedfor,and thevotescastforhimshallnotbecounted.Nevertheless,ifforanyreason,acandidateisnotdeclared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, his violation of the provisions of the preceding sections shall not preventhisproclamationandassumptiontooffice.

by granting the COMELEC or the Court the authority to continue hearing the case and to suspend thehttp://www.lawphil.net/judjuris/juri1995/sep1995/gr_120265_1995.html 14/318/31/2015 G.R. No. 120265 proclamationiftheevidenceofguiltisstrong.AsobservedbythisCourtinitsmajority"thephrase'whenthe evidenceofguiltisstrong'seemstosuggestthattheprovisionsofSection6oughttobeapplicableonlyto disqualificationcasesunderSection68oftheOmnibusElectionCode."

Fourth,theamendedRule25oftheCOMELECRulesofProcedure,whichistheonlyrulegoverningpetitionsfiled beforeelectionorproclamationforthedisqualificationofacandidateonthegroundthathelacksthequalifications provided for by the Constitution or by law, does not, as can be gathered from Section 5 thereof, authorize the COMELECtocontinuehearingthecaseaftertheelection.

Fifth, even assuming that the second sentence of Section 6 of R.A. to No. 6646 is applicable to disqualification casesbasedonthegroundoflackofqualification,itcannotbeappliedtoacasedoesnotinvolveelectiveregional, provincial, and city officials, and where suspension of proclamation is not warranted because of the absence of strongevidenceofguiltorineligibility.Insuchacasethecandidatesoughttobedisqualifiedbutwhoobtainsthe highest number of votes has to be proclaimed. Once he is proclaimed, the COMELEC cannot continue with the case, and the remedy of the opponent is to contest the winning candidate's eligibility within ten days from proclamation in a quo warranto proceeding which is within the jurisdiction of the metropolitan or municipal trial courts,inthecaseofbarangayofficialstheregionaltrialcourts,incaseofmunicipalofficials(Section2(2),Article IXC,ConstitutionSection253,paragraph2,B.P.Blg.881)theHouseofRepresentativesElectoralTribunal,inthe caseofCongressmentheSenateElectoralTribunal,inthecaseofSenators(Section17,ArticleVI,Constitution) andtheSupremeCourtenbanc,inthecaseofthePresidentorVicePresident(Section4,ArticleVII,Constitution).

If what is involved is an elective regional, provincial, or city official, and the case cannot be decided before the election,theCOMELECcan,evenaftertheproclamationofthecandidatesoughttobedisqualified,proceedwith thecasebytreatingitasapetitionforquowarranto,sincesuchacaseproperlypertainstotheexclusivejurisdiction oftheCOMELEC(Section2(2),ArticleIXC,ConstitutionSection253,B.P.Blg.881).

ButevengrantingforthesakeofargumentthatSections6and7ofR.A.No.6646,inrelationtoSection78ofthe OmnibusElectionCodeandtheamendedRule25oftheCOMELECRulesofProcedure,areapplicable,theorder ofsuspensionofthepetitioner'sproclamationissuedon15May1995isnullandvoidforhavingbeenissuedwith graveabuseofdiscretion.WhatwasbeforetheCOMELECenbancatthatstagewasthedecisionoftheSecond Divisionof6May1995dismissingthepetitiontodisqualifythepetitioneranddeclaringhimqualifiedfortheposition. Thatdecisionisadirectandpositiverejectionofanyclaimthattheevidenceofthepetitioner'sguiltisstrong.Note thatitwasonlyon2June1995,whentheCOMELECenbancreversedthedecisionoftheSecondDivision,thatit was found that the evidence of the petitioner's ineligibility is strong. It would have been otherwise if the Second Divisionhaddisqualifiedthepetitioner.

Pending the resolution of the petitioners' Motion for Reconsideration filed on May 7, 1995 Urgent MotionAdCautelamtoSuspendProclamationofRespondent(May10,1995)filedonMay10,1995 and OMNIBUS MOTION (For Reconsideration of the Honorable Commission's [Second Division] Resolution dated May 6, 1995, and 2nd Urgent Motion Ad Cautelam to Suspend Proclamation of Respondent Aquino, which cannot be resolved without hearing, without violating the right of the respondenttodueprocess....

Forbeingvoidfromthebeginningitisasiftheorderof15May1995hadnotexistedandcouldnot,therefore,be madepermanentbytheCOMELECenbancthroughitsresolutionof2June1995whosedispositiveportionreadsin part: [c]onsequently, the order of suspension of the respondent should he obtain the winning number of votes, issuedbythisCommissionon15May1995isnowmadepermanent."

This case then must be distinguished from that of Imelda RomualdezMarcos vs. Commission on Elections, G.R. No.119976,wheretheCOMELECenbancaffirmedbeforetheelections,oron7May1995,theSecondDivision's resolutionof24April1995disqualifyingMrs.Marcos.

Accordingly, the order of 15 May 1995 and the resolution of 2 June 1995 of the COMELEC en banc must be annulled and set aside, and the COMELEC, through its City Board of Canvassers of Makati, must be ordered to immediatelyproclaimthepetitioner,withoutprejudicetotherightofhisopponentstofileapetitionforquowarranto withtheHouseofRepresentativesElectoralTribunal,whichisthesolejudgeofallcontestsrelatingtotheelection, returnsandqualificationsoftheMembersoftheHouseofRepresentatives(Section17,ArticleVI,Constitution).

I vote to GRANT the instant petition, to ANNUL and SET ASIDE the challenged order and resolution of the Commission on Elections en banc, and to DIRECT the Board of Canvassers of Makati City to reconvene and proclaim the petitioner as the winning candidate, without prejudice on the part of any aggrieved party to file the appropriateactionintheHouseofRepresentativesElectoralTribunal.

TheConstitutionisnotapliableinstrument.Itisabedrockinourlegalsystemthatsetsupidealsanddirectionsand rendersteadyourstrideshence.Itonlylooksbacksoastoensurethatmistakesinthepastarenotrepeated.A complaint transience of a constitution belittles its basic function and weakens its goals. A constitution may well becomeoutdatedbytherealitiesoftime.Whenitdoes,itmustbechangedbutwhileitremains,weoweitrespect and allegiance. Anarchy, open or subtle, has never been, nor must it ever be, the answer to perceived transitory needs,letalonesocietalattitudes,ortheConstitutionmightloseitsveryessence.

Constitutional provisions must be taken to be mandatory in character unless, either by express statement or by necessaryimplication,adifferentintentionismanifest(seeMarcelinovs.Cruz,121SCRA51).

Sec. 6. No person shall be a Member of the House of Representatives unless he is a naturalborn

citizen of the Philippines and, on the day of the election, is at least twentyfive years of age, able to readandwrite,and,exceptthepartylistrepresentatives,aregisteredvoterinthedistrictinwhichhe shallbeelected,andaresidentthereofforaperiodofnotlessthanoneyearimmediatelypreceding thedayoftheelection.

Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respectiveMembers.EachElectoralTribunalshallbecomposedofnineMembers,threeofwhomshall beJusticesoftheSupremeCourttobedesignatedbytheChiefJustice,andtheremainingsixshallbe MembersoftheSenateortheHouseofRepresentatives,asthecasemaybe,whoshallbechosenon the basis of proportional representation from the political parties and the parties or organizations registeredunderthepartylistsystemrepresentedtherein.TheseniorJusticeintheElectoralTribunal shallbeitsChairman.

The Commission on Election (the "COMELEC") is constitutionally bound to enforce and administer "all laws and regulationsrelativetotheconductofelection..."(Art.IX,C,Sec.2,Constitution)that,therebeingnothingsaidto the contrary, should include its authority to pass upon the qualification and disqualification prescribed by law of candidates to an elective office. Indeed, preproclamation controversies are expressly placed under the COMELEC'sjurisdictiontohearandresolve(Art.IX,C,Sec.3,Constitution).

Thematterbeforeusspecificallycallsfortheobservanceoftheconstitutionaloneyearresidencyrequirement.This issue (whether or not there is here such compliance), to my mind, is basically a question of fact or at least inextricablylinkedtosuchdetermination.ThefindingsandjudgmentoftheCOMELEC,inaccordancewiththelong establishedruleandsubjectonlytoanumberofexceptionsunderthebasicheadingof"graveabuseofdiscretion," arenotreviewablebythisCourt.

Idonotfindmuchneedtodoacomplexexerciseonwhatseemstometobeaplainmatter.Generally,theterm "residence" has a broader connotation that mean permanent (domicile), official (place where one's official duties mayrequirehimtostay)ortemporary(theplacewherehesojournsduringaconsiderablelengthoftime).ForCivil law purposes, i.e., as regards the exercise of civil rights and the fulfillment of civil obligations, the domicile of a naturalpersonistheplaceofhishabitualresidence(see Article 50, Civil Code). In election cases, the controlling ruleisthatheretoforeannouncedbythisCourtinRomualdezvs.RegionalTrialCourt,Branch7,TaclobanCity(226 SCRA408,409)thus:

In election cases, the Court treats domicile and residence as synonymous terms, thus: "(t)he termhttp://www.lawphil.net/judjuris/juri1995/sep1995/gr_120265_1995.html 16/318/31/2015 G.R. No. 120265 "residence" as used in the election law is synonymous with "domicile," which imports not only an intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicativeofsuchintention.""Domicile"denotesafixedpermanentresidencetowhichwhenabsentfor businessorpleasure,orforlikereasons,oneintendstoreturn....Residencethusacquired,however, may be lost by adopting another choice of domicile. In order, in turn, to acquire a new domicile by choice, there must concur (1) residence or bodily presence in the new locality, (2) an intention to remainthere,and(3)anintentiontoabandontheolddomicile.Inotherwords,theremustbasicallybe animusmanendicoupledwithanimus non revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period of time the change of residence must be voluntary, and the residenceattheplacechosenforthenewdomicilemustbeactual.

The COMELEC's jurisdiction, in the case of congressional elections, ends when the jurisdiction of the Electoral Tribunalconcernedbegins.Itsignifiesthattheprotesteemusthavetheretoforebeendulyproclaimedandhassince becomea"member"oftheSenateortheHouseofRepresentatives.Thequestioncanbeaskedonwhetherornot theproclamationofacandidateisjustaministerialfunctionoftheCommissiononElectionsdictatedsolelyonthe numberofvotescastinanelectionexercise.Ibelieve,itisnot.Aministerialdutyisanobligationtheperformanceof which, being adequately defined, does not allow the use of further judgment or discretion. The COMELEC in its particular case, is tasked with the full responsibility of ascertaining all the facts and conditions such as may be requiredbylawbeforeaproclamationisproperlydone.

TheCourt,onitspart,should,inmyviewatleast,refrainfromanyundueencroachmentontheultimateexerciseof authoritybytheElectoralTribunalsonmatterswhich,bynolessthanaconstitutionalfiat,areexplicitlywithintheir exclusive domain. The nagging question, if it were otherwise, would be the effect of the Court's peremptory pronouncementontheabilityoftheElectoralTribunaltolatercomeupwithitsownjudgmentinacontest"relatingto theelection,returnsandqualification"ofitsmembers.

Sec.6.EffectofDisqualificationCase.Anycandidatewhohasbeendeclaredbyfinaljudgmentto bedisqualifiedshallnotbevotedfor,andthevotescastforhimshallnotbecounted.Ifforanyreason acandidateisnotdeclaredbyfinaljudgmentbeforeanelectiontobedisqualifiedandheisvotedfor andreceivesthewinningnumberofvotesinsuchelection,theCourtorCommissionshallcontinuewith the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidatewhenevertheevidenceofhisguiltisstrong.

Anycandidatewhohasbeendeclaredbyfinaljudgmenttobedisqualifiedshallnotbevotedfor,and thevotescastforhimshallnotbecounted.Nevertheless,ifforanyreason,acandidateisnotdeclared by final judgment before an election to be disqualified, and he is voted for and receives the winning number of votes in such election, his violation of the provisions of the preceding sections shall not preventhisproclamationandassumptiontooffice.

I realize that in considering the significance of the law, it may be preferable to look for not so much the specific instancestheyostensiblywouldcoverastheprincipletheyclearlyconvey.Thus,Iwillnotscoffattheargumentthat it should be sound to say that votes cast in favor of the disqualified candidate, whenever ultimately declared as such, should not be counted in his or her favor and must accordingly be considered to be stray votes. The argument,nevertheless,isfaroutweighedbytherationaleofthenowprevailingdoctrinefirstenunciatedinthecase ofTopaciovs.Paredes (23 Phil. 238 (1912]) which, although later abandoned in Ticzonvs.Comelec (103 SCRA 687 [1981]), and Santos vs. COMELEC (137 SCRA 740 [1985]), was restored, along with the interim case of Geronimovs.Ramos(136SCRA435[1985]),bytheLabo(176 SCRA 1 [1989]), Abella (201 SCRA 253 [1991]), Labo(211SCRA297[1992])and,mostrecently,Benito(235SCRA436(1994])rulings.Benitovs.Comelecwasa

Finally, there is the question of whether or not the private respondent, who filed the quo warranto petition,canreplacethepetitionerasmayor.Hecannot.Thesimplereasonisthatasheobtainedonly thesecondhighestnumberofvotesintheelection,hewasobviouslynotthechoiceofthepeopleof BaguioCity.

The latest ruling of the Court on this issue is Santos v. Commission on Elections, (137 SCRA 740) decidedin1985.Inthatcase,thecandidatewhoplacedsecondwasproclaimedelectedafterthevotes for his winning rival, who was disqualified as a turncoat and considered a noncandidate, were all disregardasstray.Ineffect,thesecondplacerwonbydefault.Thatdecisionwassupportedbyeight membersoftheCourtthen,(Cuevas,J.,ponente,withMakasiar,Concepcion,Jr.,Escolin,Relova,De laFuente,AlampayandAquino,JJ.,concurring.)withthreedissenting(Teehankee,ActingC.J.,Abad SantosandMelencioHerrera,JJ.)andanothertworeservingtheirvote.(PlanaandGutierrez,Jr.,JJ.) Onewasonofficialleave.(Fernando,C.J.)

Reexamining that decision, the Court finds, and so holds, that it should be reversed in favor of the earliercaseofGeronimov.Ramos,(136SCRA435)whichrepresentsthemorelogicalanddemocratic rule.Thatcase,whichreiteratedthedoctrinefirstannouncedin1912inTopaciov.Paredes,(23Phil. 238) was supported by ten members of the Court, (Gutierrez, Jr., ponente, with Teehankee, Abad Santos,MelencioHerrera,Plana,Escolin,Relova,DelaFuente,CuevasandAlampay,JJ.,concurring) withoutanydissent,althoughonereservedhisvote, (Makasiar,J.) another took no part, (Aquino, J.) and two others were on leave. (Fernando, C.J. and Concepcion,Jr.,J.)TheretheCourtheld:

...itwouldbeextremelyrepugnanttothebasicconceptoftheconstitutionallyguaranteed right to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimedawinnerandimposedastherepresentativeofaconstituency,themajorityof whichhavepositivelydeclaredthroughtheirballotsthattheydonotchoosehim.

Soundpolicydictatesthatpublicelectiveofficesarefilledbythosewhohavereceivedthe highestnumberofvotescastintheelectionforthatoffice,anditisafundamentalideain allrepublicanformsofgovernmentthatnoonecanbedeclaredelectedandnomeasure can be declared carried unless he or it receives a majority or plurality of the legal votes castintheelection.(20CorpusJuris2nd,S234,p.676.)

Thefactthatthecandidatewhoobtainedthehighestnumberofvotesislaterdeclaredto bedisqualifiedornoteligiblefortheofficetowhichhewaselecteddoesnotnecessarily entitlethecandidatewhoobtainedthesecondhighestnumberofvotestobedeclaredthe winneroftheelectiveoffice.Thevotescastforadead,disqualified,ornoneligibleperson may not be valid to vote the winner into office or maintain him there. However, in the absenceofastatutewhichclearlyassertsacontrarypoliticalandlegislativepolicyonthe matter,ifthevoteswerecastinthesincerebeliefthatthecandidatewasalive,qualified, oreligible,theyshouldnotbetreatedasstray,voidormeaningless.(atpp.2021)

The May 15, 1995 resolution of the COMELEC en banc, suspending he obtain the highest number of votes of RepresentativeoftheSecondDistrictofMakati,MetroManila,purportstohavebeenissuedpursuantto6ofR.A. No. 6646. This provision authorizes the COMELEC to order the suspension of the proclamation "whenever the evidence of his guilt is strong." As explained in my separate opinion in G.R. No. 119976, however, this provision referstoproceedingsunder68oftheOmnibusElectionCodewhichprovidesforthedisqualificationofcandidates found guilty of using what in political parlance have been referred to as "guns goons or gold" to influence the outcome of elections. Since the disqualification of petitioner in this case was not sought on this ground, the applicationof6ofR.A..No.6646isclearlyagraveabuseofdiscretiononthepartoftheCOMELEC.

http://www.lawphil.net/judjuris/juri1995/sep1995/gr_120265_1995.html 18/318/31/2015 G.R. No. 120265 filingofapetitionforthecancellationofcertificatesofcandidacysincesuchapetitionmaybefiled"exclusivelyon thegroundthatamaterialrepresentationcontained[inthecertificate]asrequiredundersection74isfalse."There was no allegation that in stating in his certificate of candidacy that he is a resident of Amapola St., Palm Village, GuadalupeViejo,Makati,MetroManila,petitionermadeanyfalserepresentation.

For this reason, I am of the opinion that the COMELEC had no jurisdiction over SPA No. 95113 that its proceedingsinSPANo.95113,includingthequestionedorders,arevoidandthatthequalificationsofpetitioner AgapitoA.AquinoforthepositionofRepresentativeoftheSecondDistrictoftheCityofMakatimayonlybeinquired intobytheHouseofRepresentativesElectoralTribunal.

Thisconclusionmakesitunnecessaryformetoexpressmyviewatthistimeonthequestionwhether,intheevent the candidate who obtained the highest number of votes is declared ineligible, the one who received the next highestnumberofvotesisentitledtobedeclaredthewinner.

Accordingly, I vote (1) to grant the petition in this case and (2) to annul the proceedings of the Commission on ElectionsinSPANo.95113,includingthequestionedorders,datedMay6,1995.May15,1995,andthetwoorders both dated June 2, 1995, so far as they declare petitioner Agapito A. Aquino to be ineligible for the position of Representative of the Second District of the City of Makati and direct the City Board of Canvassers of Makati to determineandproclaimthewinneroutoftheremainingqualifiedcandidates.

Narvasa,J.,concurs.

SeparateOpinions

PADILLA,J.,concurring:

IagreewiththeconclusionreachedbythemajoritythatpetitionerAquinohasnotshownbyclearandconvincing evidencethathehadestablishedhisresidenceintheseconddistrictofMakatiCityforaperiodofnotlessthanone (1) year prior to the 8 May 1995 elections. However, I do not fully subscribe to its proposition that petitioner's residence(inMakati)shouldbehis"domicileofchoice".

ArticleVI,Section6oftheConstitutionprovidesthat:

NopersonshallbeamemberoftheHouseofRepresentativesunlessheisanaturalborncitizenofthe Philippinesandonthedayoftheelection,isatleasttwentyfiveyearsofage,abletoreadandwrite, and,exceptthepartylistrepresentatives,aregisteredvoterinthedistrictinwhichheshallbeelected, and a resident thereof for a period of not less than one year immediately preceding the day of the election.(emphasissupplied).

InG.R.No.119976,Marcosvs.Comelec,Ihavemaintainedthatthephrase"aresidentthereofforaperiodofnot lessthanoneyear"meansactualand physical presence in the legislative district of the congressional candidate, and that said period of one year must be satisfied regardless of whether or not a person's residence or domicile coincides.

PetitionerevidentlywantstoimpresstheCourtthathisotherresidencesinMetroManilacouldneverhavebecome hisdomicileofchoicebecauseitneverenteredhismindandsuddenly,seeminglynotcontentedwiththeseother residences, he rents a condominium unit in Makati, and calls it his domicile of choice all these without adding clearandconvincingevidencethathedidactuallyliveandresideinMakatiforatleastoneyearpriorto8May1995 andthathenolongerlivedandresidedinhisotherresidencesduringsaidoneyearperiod.

It follows, likewise, that the lease contract relied upon by petitioner, standing alone, established only the alleged date (April 25, 1994) of its due execution. Stated otherwise, the lease contract tells us that petitioner had been leasing a condominium unit in Makati City for more than a year prior to 8 May 1995, but it does not prove that petitioneractuallyandphysicallyresidedthereinforthesameperiod,inthelightofhisadmissionthathemaintained otherresidencesinMetroManila.

Sec.6.EffectofDisqualificationCase.Anycandidatewhohasbeendeclaredbyfinaljudgmentto bedisqualifiedshallnotbevotedfor,andthevotescastforhimshallnotbecounted.Ifforanyreason acandidateisnotdeclaredbyfinaljudgmentbeforeanelectiontobedisqualifiedandheisvotedfor andreceivesthewinningnumberofvotesinsuchelection,theCourtorCommissionshallcontinuewith the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidatewhenevertheevidenceofhisguiltisstrong.

Therecanbenodisputethatifafinaljudgmentisrenderedbeforetheelection,declaringaparticularcandidateas disqualified, such disqualified candidate shall not be voted for and votes cast for him shall not be counted, thus posing no problem in proclaiming the candidate who receives the highest number of votes among the qualified candidates.

Butwhataboutaftertheelection?Sec.6appearscategoricalenoughinstating:"ifanyreason"nofinaljudgmentof disqualificationisrenderedbeforetheelections,andthecandidatefacingdisqualificationisvotedforandreceives thewinningnumberofvotes,theComelecortheCourtisnotoustedofitsjurisdictiontohearandtrythecaseupto final judgment, hence, the power to even suspend the proclamation of the erstwhile winning candidate when evidenceofhisguiltisstrong.

Whathappensthenwhenaftertheelectionsareover,oneisdeclareddisqualified?Then,votescastfor him "shall not be counted" and in legal contemplation, he no longer received the highest number of votes.

It stands to reason that Section 6 of RA 6646 does not make the second placer the winner simply becausea"winningcandidateisdisqualified,"butthatthelawconsidershimasthecandidatewhohad obtained the highest number of votes as a result of the votes cast for the disqualified candidate not beingcountedorconsidered.

Iconcurwiththewellwrittenponenciaofmymostesteemedcolleague,Mr.JusticeKapunan.Iwish,however,to express my views on some issues raised by the petitioner, viz., (1) jurisdiction over the disqualification suit, (2) domicile,(3)theoryoflegalimpossibility,and(4)"secondplacerrule".

PetitioneremphaticallymaintainsthatonlytheHouseofRepresentativesElectoralTribunal(HRET)candeclarehis disqualification, especially after the elections. To bolster this stand, the cases of Co v. HRET, 199 SCRA 692 (1991)Roblesv.HRET,181SCRA780(1990)Lazatinv.HRET,168SCRA391(1988)andLachicav.Yap, 25 SCRA140(1968),havebeencitedassupportingauthorities.Tomymind,thispositionisuntenable.Section17of ArticleVIofthe1987ConstitutionisclearandunambiguousthatHRETjurisdictionappliesonlytothemembersof theHouseofRepresentatives.Theoperativeactsnecessaryforanelectoralcandidate'srightfulassumptionofthe office for which he ran are his proclamation and his taking an oath of office. Petitioner cannot in anyway behttp://www.lawphil.net/judjuris/juri1995/sep1995/gr_120265_1995.html 20/318/31/2015 G.R. No. 120265 consideredasamemberoftheHouseofRepresentativesforthepurposeofdivestingtheCommissiononElections ofjurisdictiontodeclarehisdisqualificationandinvokinginsteadHRET'sjurisdiction,itindubitablyappearingthathe hasyettobeproclaimed,muchlesshashetakenanoathofoffice.Clearly,petitioner'srelianceontheaforecited cases which when perused involved Congressional members, is totally misplaced, if not wholly inapplicable. That the jurisdiction conferred upon HRET extends only to Congressional members is further established by judicial notice of HRET Rules of procedure, 1 and HRET decisions 2 consistently holding that the proclamation the essential requisitevestingjurisdictionontheHRET.

Moreover,aperusaloftherecordsshowsthatthequestiononCOMELEC'sjurisdictionisnowbarredbyestoppel.It istobenotedthatinhisMay2,1995Answer,aswellasinhisMemorandumandSupplementalMemorandumfiled before the COMELEC's Second Division, petitioner never assailed COMELEC's lacks of jurisdiction to rule on his qualification. On the contrary, he asked that the disqualification suit against him be dismissed on the following grounds: that it was filed outside the reglementary period that the one year residence requirement of the 1987 Constitution is inapplicable due to the recent conversion of the municipality of Makati into a city under R.A. No. 7854thathecommittedasimpleinadvertenceinfilinguphiscertificateofcandidacythattheproperprocedureto attack his qualification is by aquowarranto proceeding that he had actually and physically resided in Makati for more than a year and for lack of merit, the case should be outrightly dismissed. In a hearing conducted by the COMELEC on May 2, 1995, petitioner even submitted his evidence (e.g. affidavits, amended certificate of candidacy,copyoftheleasecontract)toprovethatheisqualifiedfortheposition.Subsequently,onMay16,1995, inresponsetotheCOMELECEnBanc'sMay15,1995Ordersuspendingtheproclamationofthewinner,petitioner filedhisComment/OppositionwithUrgentMotionToLiftOrderofSuspensionofProclamationaskingfortheliftingof theCOMELEC'sorderofsuspension.OnMay19,1995,petitioneragainfiledaMemorandumandaverredthatthe recent conversion of Makati into a city made the oneyear residence requirement inapplicable that he resided in Makatiformorethanayearthatquowarrantoistherightremedytoquestionhisqualification.Inpassing,petitioner also alleged that the issue on his qualification should be "properly" ventilated in a fulldress hearing before the HRET, albeit praying for the dismissal of the motion for reconsideration for utter lack of merit (and not for lack of jurisdiction),andforliftingthesuspensionofhisproclamation.ItwasonlyonJune01,1995,inhisMotiontoFile Supplemental Memorandum and Urgent Motion to Resolve Motion to Lift Suspension of Proclamation, when the petitioner raised COMELEC's alleged lack of jurisdiction to resolve the question on his qualification. Clearly then, petitioner has actively participated in the proceedings both before the COMELEC's Second Division and the COMELECEnBancaskingthereinaffirmativereliefs.Thesettledruleisthatapartywhoobjectstothejurisdiction ofthecourtandallegesatthesametimeanynonjurisdictionalgroundfordismissingtheactionisdeemedtohave submitted himself to the jurisdiction of the court.3 Where a party voluntary submits to the jurisdiction of the court and thereafter loses on the merits, he may not thereafter be heard to say that the court had no jurisdiction. 4 In Jimenez v. Macaraig,5theCourt,citingCrisostomov. Court of Appeals, 32 SCRA 54, 60 (1970), elaborated on the rationale for this doctrineinthiswise:

Thepetitioners,toborrowthelanguageofMr.JusticeBautistaAngelo(Peoplevs.Archilla,G.R.No.L 15632,February28,1961,1SCRA699,700701),cannotadoptapostureofdoubledealingwithout running afoul of the doctrine of estoppel. The principle of estoppel is in the interest of a sound administration of the laws. It should deter those who are disposed to trifle with the courts by taking inconsistent positions contrary to the elementary principles of right dealing and good faith (People v. Acierto,92Phil.534,541,[1953]).6

It is not right for a party who has affirmed and invoked the jurisdiction of a court in a particular matter to secure an affirmative relief to afterwards deny that same jurisdiction to escape an adverse decision. 7 Perforce,petitioner'sasseverationthattheCOMELEChasnojurisdictiontoruleonhisqualificationmustfail.

Petitionerinsiststhatdomicileisamatterofpersonalintention.Thus,petitionassertsthatifhedecidestotransfer hislegalresidencesohecanqualifyforpublicofficethenheisentirelyfreetodoso.Thusargumenttoholdwater, mustbesupportedbyaclearandconvincingproofsthatpetitionerhaseffectivelyabandonedhisformerdomicile and that his intention is not doubtful. Indeed, domicile once established is considered to continue and will not be deemedlostuntilanewoneisestablished(Cov.ElectoralTribunalHouseofRepresentatives,199SCRA692,711 [1991]).PetitionerfromchildhooduntilhislastelectionassenatorhasconsistentlymaintainedConcepcion,Tarlac, ashisdomicile.HemovedtoAmapolaStreet,PalmVillage,Makati,andthereafterclaimedthesametobehisnew domicile.Thisclaim,however,isdismallyunsupportedbytherecords.Theleasecontractenteredintobypetitioner foraperiodoftwoyearsonthethirdfloorcondominiumunitinPalmVillage,Makati,inmyview,doesnotprovehis intenttoabandonhisdomicileoforigin.Theintentiontoestablishdomicilemustbeanintentiontoremainindefinitely orpermanentlyinthenewplace.8Thiselementislackinginthisinstance.Worse,publicrespondentCommissioneven found that "respondent Aquino himself testified that his intention was really for only one (1) year because he has other 'residences'inManilaorinQuezonCity([citing]TSN,May2,1995, p.92)".9Notingthatpetitionerisalreadybarredfromrunningforsenatorduetotheconstitutionalconsecutivetwotermlimit, hissearchforaplacewherehecouldfurtherandcontinuehispoliticalcareerandsuddentransfertheretomakehisintent suspect.Thebesttestofintentiontoestablishlegalresidence comesfromone'sactsandnotbymeredeclarationsalone. 10Toacquire,oreffectachangeofdomicile,theintentionmusthttp://www.lawphil.net/judjuris/juri1995/sep1995/gr_120265_1995.html 21/318/31/2015 G.R. No. 120265 bebonafideand unequivocal (28 C.J.S. 11). Petitioner, in my view, miserably failed to show a bonafideand unequivocal intentiontoeffectthechangeofhisdomicile.

The theory of legal impossibility is advanced to justify noncompliance with the constitutional qualification on residency.Petitionerexplainshistheoryinthiswise:

. . . THE COMELEC CRITICALLY ERRED IN FAILING TO APPRECIATE THE LEGAL

IMPOSSIBILITY OF ENFORCING THE ONE YEAR RESIDENCY REQUIREMENT OF CONGRESSIONAL CANDIDATES IN NEWLY CREATED POLITICAL DISTRICTS WHICH WERE ONLYEXISTINGFORLESSTHANAYEARATTHETIMEOFTHEELECTIONANDBARELYFOUR MONTHSINTHECASEOFPETITIONER'SDISTRICTINMAKATI.11

Apparently,thistheoryisanoffshootofRepublicAct.No.7854,anactconvertingthemunicipalityofMakati intoahighlyurbanizedcity.ThislawenactedonJanuary2,1995,establishedasecondCongressionaldistrict in Makati in which petitioner ran as a Congressional candidate. Since the second district, according to petitioner, is barely four (4) months old then the one (1) year residence qualification provided by the Constitution is inapplicable. Petitioner's acts, however, as borne by the records, belie his own theory. Originally,heplacedinhiscertificateofcandidacyanentryoften(10)monthsresidenceinMakati.Petitioner then had it amended to one (1) year and thirteen (13) days to correct what claims as a mere inadvertent mistake.Idoubtthesincerityofthisrepresentation.Ifpetitionerisindeedpersuadedbyhisowntheory,the ten months residence he initially wrote would have more than sufficiently qualified him to run in the barely fourmonth old Makati district. The amendment only reveals the true intent of petitioner to comply with one year constitutional requirement for residence, adding an extra thirteen (13) days full measure. Petitioner apparentlywantedtoargueoneway(theoryoflegalimpossibility),butatthesametimeplayeditsafeinthe other (the constitutional one year residence requirement). And that is not all. If we were to adhere to petitioner's theory of legal impossibility, then residents in that district shorn of the constitutional six months residence requirement for prospective voters (Article V, Section 1 of the 1987 Constitution) would have certainlyqualifiedtovote.Thatwouldhavelegitimizedtheentryandelectoralexerciseofflyingvotersone of the historic nemeses of a clean and honest election. Furthermore, to subscribe to petitioner's contention that the constitutional qualification of candidates should be brushed aside in view of the enactment of R.A. No.7854willindubitablyviolatethemannerandprocedurefortheamendmentorrevisionoftheconstitution outlinedunderArticleXVIIIofthe1987Constitution.Alegislativeenactment,ithastobeemphasized,cannot render nugatory the constitution. The constitution is superior to a statute. It is the fundamental and organic lawofthelandtowhicheverystatutemustconformandharmonize.

Finally,ithasbeencontendedthatasecondplacecandidatecannotbeproclaimedasubstitutewinner.Ifindthe proposition quite unacceptable. A disqualified "candidate" is not a candidate and the votes which may have been cast in his favor are nothing but stray votes of no legal consequence. A disqualified person like the petitioner receivesnovoteorzerovote.Inshort, nocandidatenovote.Petitionerhadthereforenoright,infactandinlaw,toclaimfirstplaceforhehasnothingto basehisright.ThelegislativeintentisclearasprovidedbyR.A.6646,Section6,inthatvotescastforadisqualified candidateshallnotbecountedastheyareconsideredstray(Section211,Rule24,OmnibusElectionCode).Itis only from the ranks of qualified candidates can one be chosen as first placer and not from without. Necessarily, petitioner, a disqualified candidate, cannot be a first placer as he claims himself to be. To count the votes for a disqualifiedcandidatewould,inmyview,disenfranchisevoterswhovotedforaqualifiedcandidate.Legitimatevotes castforaqualifiedcandidateshouldnotbepenalizedalongsideadisqualifiedcandidate.Withthisinmind,theother qualifiedcandidatewhogarneredthehighestnumberofvotesshouldbeproclaimedthedulyelectedrepresentative ofthedistrict.IfeelthattheLabodoctrineoughttobeabandoned.

I therefore vote to deny the petition and to lift the temporary restraining order issued by the Court dated June 6, 1995.

DAVIDE,JR.,J.,dissenting:

In sustaining the COMELEC's acts of suspending the proclamation of petitioner Agapito A. Aquino and of proceedingtohearthedisqualificationcaseagainsthim,themajorityopinionreliesonSection6ofR.A.No.6646 which it claims to be applicable by virtue of Section 7 thereof to petitions to deny due course to or cancel a certificateofcandidacyunderSection78oftheOmnibusElectionCode(B.P.Blg.881).

Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. A verified petitionhttp://www.lawphil.net/judjuris/juri1995/sep1995/gr_120265_1995.html 22/318/31/2015 G.R. No. 120265 seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusivelyonthegroundthatanymaterialrepresentationcontainedthereinasrequiredunderSection 74hereofisfalse.Thepetitionmaybefiledatanytimenotlaterthantwentyfivedaysfromthetimeof the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later thanfifteendaysbeforetheelection.(emphasissupplied)

Nowhere in the petition in SPA No. 95113 is it alleged by the private respondents that a material representation containedinthepetitioner'scertificateofcandidacyisfalse.Whatisbeingattackedthereinisthepetitioner'slackof the oneyear residence qualification in the new Second Legislative District of Makati City where he sought to he electedfortheofficeofCongressman.

The rule governing disqualification cases on the ground of ineligibility, which is also invoked by the private respondents,isRule25oftheCOMELECRulesofProcedure,asamendedon15February1993.Theamendment allowsthe,filingofapetitiontodisqualifyacandidateonthegroundthathedoesnotpossessallthequalifications provided for by the Constitution or by existing laws. In its original form, the rule only applied to petitions for disqualificationbasedonthecommissionofanyactdeclaredbylawtobeagroundfordisqualification.Theruleas thusamendednowreadsasfollows:

Rule25DisqualificationofCandidates

Sec.1.GroundsforDisqualification.Anycandidatewhodoesnotpossessallthequalificationsofa candidateasprovidedforbytheConstitutionorbyexistinglaw or who commits any act declared by lawtobegroundsfordisqualificationmaybedisqualifiedfromcontinuingasacandidate.

Sec. 2. Who May File Petition for Disqualification. Any citizen of voting age, or duly registered political party, organization or coalition of political parties may file with the Law Department of the Commissionapetitiontodisqualifyacandidateongroundsprovidedbylaw.

Sec. 3. Period to File Petition. The petition shall be filed any day after the last day for filing of certificatesofcandidacybutnotlaterthanthedateofproclamation.

Sec. 5. Effect of Petition if Unresolved Before Completion of Canvass. If the petition, for reasons beyond the control of the Commission, cannot be decided before the completion of the canvass, the votescastfortherespondentmaybeincludedinthecountingandinthecanvassinghowever,ifthe evidence of guilt is strong, his proclamation shall be suspended notwithstanding the fact that he receivedthewinningnumberofvotesinsuchelection.

Rule25oftheComelecRulesofProcedurereferstoDisqualificationofCandidatesandSection1of said rule provides that any candidate who commits any act declared by law to be a ground for disqualificationmaybedisqualifiedfromcontinuingasacandidate.Thegroundsfordisqualificationas expressedinSections12and68oftheCode,arethefollowing:

Sec. 12. Disqualification. Any person who has been declared by competent authority insane or incompetent, or has been sentenced by final judgment for subversion, insurrection,rebellionorforanyoffenseforwhichhehasbeensentencedtoapenaltyof morethaneighteenmonthsorforacrimeinvolvingmoralturpitude,shallbedisqualifiedto be a candidate and to hold any office, unless he has been given plenary pardon or grantedamnesty.

Sec.63DisquaIifications.Anycandidatewho,inanactionorprotestinwhichheisa party is declared by final decision of 4 competent court guilty of, or found by the Commissionofhaving(a)givenmoneyorothermaterialconsiderationtoinfluence,induce orcorruptthevotersorpublicofficialsperformingelectoralfunctions(b)committedactsof terrorism to enhance his candidacy (c) spent in his election campaign an amount in excess of that allowed by this Code (d) solicited, received or made any contribution

ThepetitionfiledbyprivaterespondentUtutalumwiththerespondentComelectodisqualifypetitioner Loongonthegroundthatthelattermadeafalserepresentationinhiscertificateofcandidacyastohis age, clearly does not fall under the grounds of disqualification as provided for in Rule 25 but is expressly covered by Rule 23 of the Comelec Rules of Procedure governing petitions to cancel certificateofcandidacy.Moreover,Section3,Rule25whichallowsthefilingofthepetitionatanytime afterthelastdayforthefilingofcertificatesofcandidacybutnotlaterthanthedateofproclamation,is merelyaproceduralruleissuedbyrespondentCommissionwhich,althoughaconstitutionalbody,has nolegislativepowers.Thus,itcannotsupersedeSection78oftheOmnibusElectionCodewhichisa legislativeenactment.

Sec.6.EffectofDisqualificationCase.Anycandidatewhohasbeendeclaredbyfinaljudgmentto bedisqualifiedshallnotbevotedfor,andthevotescastforhimshallnotbecounted.Ifforanyreason acandidateisnotdeclaredbyfinaljudgmentbeforeanelectiontobedisqualifiedandheisvotedfor andreceivesthewinningnumberofvotesinsuchelection,theCourtorCommissionshallcontinuewith the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidatewhenevertheevidenceofhisguiltisstrong.

Sec. 71 Petition to Deny Due Course to or Cancel a Certificate of Candidacy. The procedure hereinaboveprovidedshallapplytopetitionstodenyduecoursetoorcancelacertificateofcandidacy asprovidedinSection78ofBatasPambansaBlg.881.

The"procedurehereinaboveprovided"mentionedinSection7cannotbeconstruedtorefertoSection6whichdoes not provide for a procedure but for the EFFECTS of disqualification cases. It can only refer to the procedure providedinSection5ofthesaidActonnuisancecandidateswhichreadsasfollows:

(b) Within three (3) days from the filing of the petition, the Commission shall issue summons to the respondentcandidatetogetherwithacopyofthepetitionanditsenclosures,ifany.

(c)Therespondentshallbegiventhree(3)daysfromreceiptofthesummonswithinwhichtofilehis verified answer (not a motion to dismiss) to the petition, serving copy thereof upon the petitioner. Groundsforamotiontodismissmayberaisedasaffirmativedefenses.

(d)TheCommissionmaydesignateanyofitsofficialswhoarelawyerstohearthecaseandreceive evidence.Theproceedingshallbesummaryinnature.Inlieuoforaltestimonies,thepartiesmaybe requiredtosubmitpositionpaperstogetherwithaffidavitsorcounteraffidavitsandotherdocumentary evidence. The hearing officer shall immediately submit to the Commission his findings, reports, and recommendations within five (5) days from the completion of such submission of evidence. The Commissionshallrenderitsdecisionwithinfive(5)daysfromreceiptthereof.

(e) The decision, order, or ruling of the Commission shall, after five (5) days from receipt of a copy thereofbytheparties,befinalandexecutoryunlessstayedbytheSupremeCourt.

(f)TheCommissionshallwithintwentyfourhours,throughthefastestavailablemeans,disseminateits decision or the decision of the Supreme Court or the city or municipal election registrars, boards of electioninspectors,andthegeneralpublicinthepoliticalsubdivisionconcerned.

http://www.lawphil.net/judjuris/juri1995/sep1995/gr_120265_1995.html 24/318/31/2015 G.R. No. 120265 procedureapplicabletocasesofnuisancecandidatesisprudentandwise,forbothcasesnecessarilyrequire that they be decided before the day of the election hence, only summary proceedings thereon can adequatelyrespondtotheurgencyofthematter.

Anycandidatewhohasbeendeclaredbyfinaljudgmenttobedisqualifiedshallnotbevotedfor,and thevotescastforhimshallnotbecounted.Nevertheless,ifforanyreason,acandidateisnotdeclared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, his violation of the provisions of the preceding sections shall not preventhisproclamationandassumptiontooffice.

by granting the COMELEC or the Court the authority to continue hearing the case and to suspend the proclamationiftheevidenceofguiltisstrong.AsobservedbythisCourtinitsmajority"thephrase'whenthe evidenceofguiltisstrong'seemstosuggestthattheprovisionsofSection6oughttobeapplicableonlyto disqualificationcasesunderSection68oftheOmnibusElectionCode."

Fourth,theamendedRule25oftheCOMELECRulesofProcedure,whichistheonlyrulegoverningpetitionsfiled beforeelectionorproclamationforthedisqualificationofacandidateonthegroundthathelacksthequalifications provided for by the Constitution or by law, does not, as can be gathered from Section 5 thereof, authorize the COMELECtocontinuehearingthecaseaftertheelection.

Fifth, even assuming that the second sentence of Section 6 of R.A. to No. 6646 is applicable to disqualification casesbasedonthegroundoflackofqualification,itcannotbeappliedtoacasedoesnotinvolveelectiveregional, provincial, and city officials, and where suspension of proclamation is not warranted because of the absence of strongevidenceofguiltorineligibility.Insuchacasethecandidatesoughttobedisqualifiedbutwhoobtainsthe highest number of votes has to be proclaimed. Once he is proclaimed, the COMELEC cannot continue with the case, and the remedy of the opponent is to contest the winning candidate's eligibility within ten days from proclamation in a quo warranto proceeding which is within the jurisdiction of the metropolitan or municipal trial courts,inthecaseofbarangayofficialstheregionaltrialcourts,incaseofmunicipalofficials(Section2(2),Article IXC,ConstitutionSection253,paragraph2,B.P.Blg.881)theHouseofRepresentativesElectoralTribunal,inthe caseofCongressmentheSenateElectoralTribunal,inthecaseofSenators(Section17,ArticleVI,Constitution) andtheSupremeCourtenbanc,inthecaseofthePresidentorVicePresident(Section4,ArticleVII,Constitution).

If what is involved is an elective regional, provincial, or city official, and the case cannot be decided before the election,theCOMELECcan,evenaftertheproclamationofthecandidatesoughttobedisqualified,proceedwith thecasebytreatingitasapetitionforquowarranto,sincesuchacaseproperlypertainstotheexclusivejurisdiction oftheCOMELEC(Section2(2),ArticleIXC,ConstitutionSection253,B.P.Blg.881).

ButevengrantingforthesakeofargumentthatSections6and7ofR.A.No.6646,inrelationtoSection78ofthe OmnibusElectionCodeandtheamendedRule25oftheCOMELECRulesofProcedure,areapplicable,theorder ofsuspensionofthepetitioner'sproclamationissuedon15May1995isnullandvoidforhavingbeenissuedwith graveabuseofdiscretion.WhatwasbeforetheCOMELECenbancatthatstagewasthedecisionoftheSecond Divisionof6May1995dismissingthepetitiontodisqualifythepetitioneranddeclaringhimqualifiedfortheposition. Thatdecisionisadirectandpositiverejectionofanyclaimthattheevidenceofthepetitioner'sguiltisstrong.Note thatitwasonlyon2June1995,whentheCOMELECenbancreversedthedecisionoftheSecondDivision,thatit was found that the evidence of the petitioner's ineligibility is strong. It would have been otherwise if the Second Divisionhaddisqualifiedthepetitioner.

Pending the resolution of the petitioners' Motion for Reconsideration filed on May 7, 1995 Urgent MotionAdCautelamtoSuspendProclamationofRespondent(May10,1995)filedonMay10,1995 and OMNIBUS MOTION (For Reconsideration of the Honorable Commission's [Second Division] Resolution dated May 6, 1995, and 2nd Urgent Motion Ad Cautelam to Suspend Proclamation of Respondent Aquino, which cannot be resolved without hearing, without violating the right of the respondenttodueprocess....

Forbeingvoidfromthebeginningitisasiftheorderof15May1995hadnotexistedandcouldnot,therefore,be madepermanentbytheCOMELECenbancthroughitsresolutionof2June1995whosedispositiveportionreadsin part: [c]onsequently, the order of suspension of the respondent should he obtain the winning number of votes,http://www.lawphil.net/judjuris/juri1995/sep1995/gr_120265_1995.html 25/318/31/2015 G.R. No. 120265 issuedbythisCommissionon15May1995isnowmadepermanent."

This case then must be distinguished from that of Imelda RomualdezMarcos vs. Commission on Elections, G.R. No.119976,wheretheCOMELECenbancaffirmedbeforetheelections,oron7May1995,theSecondDivision's resolutionof24April1995disqualifyingMrs.Marcos.

Accordingly, the order of 15 May 1995 and the resolution of 2 June 1995 of the COMELEC en banc must be annulled and set aside, and the COMELEC, through its City Board of Canvassers of Makati, must be ordered to immediatelyproclaimthepetitioner,withoutprejudicetotherightofhisopponentstofileapetitionforquowarranto withtheHouseofRepresentativesElectoralTribunal,whichisthesolejudgeofallcontestsrelatingtotheelection, returnsandqualificationsoftheMembersoftheHouseofRepresentatives(Section17,ArticleVI,Constitution).

I vote to GRANT the instant petition, to ANNUL and SET ASIDE the challenged order and resolution of the Commission on Elections en banc, and to DIRECT the Board of Canvassers of Makati City to reconvene and proclaim the petitioner as the winning candidate, without prejudice on the part of any aggrieved party to file the appropriateactionintheHouseofRepresentativesElectoralTribunal.

TheConstitutionisnotapliableinstrument.Itisabedrockinourlegalsystemthatsetsupidealsanddirectionsand rendersteadyourstrideshence.Itonlylooksbacksoastoensurethatmistakesinthepastarenotrepeated.A complaint transience of a constitution belittles its basic function and weakens its goals. A constitution may well becomeoutdatedbytherealitiesoftime.Whenitdoes,itmustbechangedbutwhileitremains,weoweitrespect and allegiance. Anarchy, open or subtle, has never been, nor must it ever be, the answer to perceived transitory needs,letalonesocietalattitudes,ortheConstitutionmightloseitsveryessence.

Constitutional provisions must be taken to be mandatory in character unless, either by express statement or by necessaryimplication,adifferentintentionismanifest(seeMarcelinovs.Cruz,121SCRA51).

Sec. 6. No person shall be a Member of the House of Representatives unless he is a naturalborn

citizen of the Philippines and, on the day of the election, is at least twentyfive years of age, able to readandwrite,and,exceptthepartylistrepresentatives,aregisteredvoterinthedistrictinwhichhe shallbeelected,andaresidentthereofforaperiodofnotlessthanoneyearimmediatelypreceding thedayoftheelection.

Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respectiveMembers.EachElectoralTribunalshallbecomposedofnineMembers,threeofwhomshall beJusticesoftheSupremeCourttobedesignatedbytheChiefJustice,andtheremainingsixshallbe MembersoftheSenateortheHouseofRepresentatives,asthecasemaybe,whoshallbechosenon the basis of proportional representation from the political parties and the parties or organizations registeredunderthepartylistsystemrepresentedtherein.TheseniorJusticeintheElectoralTribunal shallbeitsChairman.

The Commission on Election (the "COMELEC") is constitutionally bound to enforce and administer "all laws and regulationsrelativetotheconductofelection..."(Art.IX,C,Sec.2,Constitution)that,therebeingnothingsaidto the contrary, should include its authority to pass upon the qualification and disqualification prescribed by law of candidates to an elective office. Indeed, preproclamation controversies are expressly placed under thehttp://www.lawphil.net/judjuris/juri1995/sep1995/gr_120265_1995.html 26/318/31/2015 G.R. No. 120265 COMELEC'sjurisdictiontohearandresolve(Art.IX,C,Sec.3,Constitution).

Thematterbeforeusspecificallycallsfortheobservanceoftheconstitutionaloneyearresidencyrequirement.This issue (whether or not there is here such compliance), to my mind, is basically a question of fact or at least inextricablylinkedtosuchdetermination.ThefindingsandjudgmentoftheCOMELEC,inaccordancewiththelong establishedruleandsubjectonlytoanumberofexceptionsunderthebasicheadingof"graveabuseofdiscretion," arenotreviewablebythisCourt.

Idonotfindmuchneedtodoacomplexexerciseonwhatseemstometobeaplainmatter.Generally,theterm "residence" has a broader connotation that mean permanent (domicile), official (place where one's official duties mayrequirehimtostay)ortemporary(theplacewherehesojournsduringaconsiderablelengthoftime).ForCivil law purposes, i.e., as regards the exercise of civil rights and the fulfillment of civil obligations, the domicile of a naturalpersonistheplaceofhishabitualresidence(see Article 50, Civil Code). In election cases, the controlling ruleisthatheretoforeannouncedbythisCourtinRomualdezvs.RegionalTrialCourt,Branch7,TaclobanCity(226 SCRA408,409)thus:

In election cases, the Court treats domicile and residence as synonymous terms, thus: "(t)he term "residence" as used in the election law is synonymous with "domicile," which imports not only an intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicativeofsuchintention.""Domicile"denotesafixedpermanentresidencetowhichwhenabsentfor businessorpleasure,orforlikereasons,oneintendstoreturn....Residencethusacquired,however, may be lost by adopting another choice of domicile. In order, in turn, to acquire a new domicile by choice, there must concur (1) residence or bodily presence in the new locality, (2) an intention to remainthere,and(3)anintentiontoabandontheolddomicile.Inotherwords,theremustbasicallybe animusmanendicoupledwithanimus non revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period of time the change of residence must be voluntary, and the residenceattheplacechosenforthenewdomicilemustbeactual.

The COMELEC's jurisdiction, in the case of congressional elections, ends when the jurisdiction of the Electoral Tribunalconcernedbegins.Itsignifiesthattheprotesteemusthavetheretoforebeendulyproclaimedandhassince becomea"member"oftheSenateortheHouseofRepresentatives.Thequestioncanbeaskedonwhetherornot theproclamationofacandidateisjustaministerialfunctionoftheCommissiononElectionsdictatedsolelyonthe numberofvotescastinanelectionexercise.Ibelieve,itisnot.Aministerialdutyisanobligationtheperformanceof which, being adequately defined, does not allow the use of further judgment or discretion. The COMELEC in its particular case, is tasked with the full responsibility of ascertaining all the facts and conditions such as may be requiredbylawbeforeaproclamationisproperlydone.

TheCourt,onitspart,should,inmyviewatleast,refrainfromanyundueencroachmentontheultimateexerciseof authoritybytheElectoralTribunalsonmatterswhich,bynolessthanaconstitutionalfiat,areexplicitlywithintheir exclusive domain. The nagging question, if it were otherwise, would be the effect of the Court's peremptory pronouncementontheabilityoftheElectoralTribunaltolatercomeupwithitsownjudgmentinacontest"relatingto theelection,returnsandqualification"ofitsmembers.

Sec.6.EffectofDisqualificationCase.Anycandidatewhohasbeendeclaredbyfinaljudgmentto bedisqualifiedshallnotbevotedfor,andthevotescastforhimshallnotbecounted.Ifforanyreason acandidateisnotdeclaredbyfinaljudgmentbeforeanelectiontobedisqualifiedandheisvotedfor andreceivesthewinningnumberofvotesinsuchelection,theCourtorCommissionshallcontinuewith the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidatewhenevertheevidenceofhisguiltisstrong.

BATASPAMBANSABLG.881

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Sec. 72. Effects of disqualification cases and priority. The Commission and the courts shall give prioritytocasesofdisqualificationbyreasonofviolationofthisActtotheendthatafinaldecisionshall

Anycandidatewhohasbeendeclaredbyfinaljudgmenttobedisqualifiedshallnotbevotedfor,and thevotescastforhimshallnotbecounted.Nevertheless,ifforanyreason,acandidateisnotdeclared by final judgment before an election to be disqualified, and he is voted for and receives the winning number of votes in such election, his violation of the provisions of the preceding sections shall not preventhisproclamationandassumptiontooffice.

I realize that in considering the significance of the law, it may be preferable to look for not so much the specific instancestheyostensiblywouldcoverastheprincipletheyclearlyconvey.Thus,Iwillnotscoffattheargumentthat it should be sound to say that votes cast in favor of the disqualified candidate, whenever ultimately declared as such, should not be counted in his or her favor and must accordingly be considered to be stray votes. The argument,nevertheless,isfaroutweighedbytherationaleofthenowprevailingdoctrinefirstenunciatedinthecase ofTopaciovs.Paredes (23 Phil. 238 (1912]) which, although later abandoned in Ticzonvs.Comelec (103 SCRA 687 [1981]), and Santos vs. COMELEC (137 SCRA 740 [1985]), was restored, along with the interim case of Geronimovs.Ramos(136SCRA435[1985]),bytheLabo(176 SCRA 1 [1989]), Abella (201 SCRA 253 [1991]), Labo(211SCRA297[1992])and,mostrecently,Benito(235SCRA436(1994])rulings.Benitovs.Comelecwasa unanimous decision penned by Justice Kapunan and concurred in by Chief Justice Narvasa, Justices Feliciano, Padilla,Bidin,Regalado,Davide,Romero,Melo,Quiason,Puno,VitugandMendoza(JusticesCruzandBellosillo wereonofficialleave).Foreasyreference,letmequotefromthefirstLabodecision:

Finally, there is the question of whether or not the private respondent, who filed the quo warranto petition,canreplacethepetitionerasmayor.Hecannot.Thesimplereasonisthatasheobtainedonly thesecondhighestnumberofvotesintheelection,hewasobviouslynotthechoiceofthepeopleof BaguioCity.

The latest ruling of the Court on this issue is Santos v. Commission on Elections, (137 SCRA 740) decidedin1985.Inthatcase,thecandidatewhoplacedsecondwasproclaimedelectedafterthevotes for his winning rival, who was disqualified as a turncoat and considered a noncandidate, were all disregardasstray.Ineffect,thesecondplacerwonbydefault.Thatdecisionwassupportedbyeight membersoftheCourtthen,(Cuevas,J.,ponente,withMakasiar,Concepcion,Jr.,Escolin,Relova,De laFuente,AlampayandAquino,JJ.,concurring.)withthreedissenting(Teehankee,ActingC.J.,Abad SantosandMelencioHerrera,JJ.)andanothertworeservingtheirvote.(PlanaandGutierrez,Jr.,JJ.) Onewasonofficialleave.(Fernando,C.J.)

Reexamining that decision, the Court finds, and so holds, that it should be reversed in favor of the earliercaseofGeronimov.Ramos,(136SCRA435)whichrepresentsthemorelogicalanddemocratic rule.Thatcase,whichreiteratedthedoctrinefirstannouncedin1912inTopaciov.Paredes,(23Phil. 238) was supported by ten members of the Court, (Gutierrez, Jr., ponente, with Teehankee, Abad Santos,MelencioHerrera,Plana,Escolin,Relova,DelaFuente,CuevasandAlampay,JJ.,concurring) withoutanydissent,althoughonereservedhisvote, (Makasiar,J.) another took no part, (Aquino, J.) and two others were on leave. (Fernando, C.J. and Concepcion,Jr.,J.)TheretheCourtheld:

...itwouldbeextremelyrepugnanttothebasicconceptoftheconstitutionallyguaranteed right to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimedawinnerandimposedastherepresentativeofaconstituency,themajorityof whichhavepositivelydeclaredthroughtheirballotsthattheydonotchoosehim.

Soundpolicydictatesthatpublicelectiveofficesarefilledbythosewhohavereceivedthe highestnumberofvotescastintheelectionforthatoffice,anditisafundamentalideain allrepublicanformsofgovernmentthatnoonecanbedeclaredelectedandnomeasure can be declared carried unless he or it receives a majority or plurality of the legal votes castintheelection.(20CorpusJuris2nd,S234,p.676.)

Thefactthatthecandidatewhoobtainedthehighestnumberofvotesislaterdeclaredto bedisqualifiedornoteligiblefortheofficetowhichhewaselecteddoesnotnecessarily entitlethecandidatewhoobtainedthesecondhighestnumberofvotestobedeclaredthe winneroftheelectiveoffice.Thevotescastforadead,disqualified,ornoneligibleperson may not be valid to vote the winner into office or maintain him there. However, in the absenceofastatutewhichclearlyassertsacontrarypoliticalandlegislativepolicyonthe matter,ifthevoteswerecastinthesincerebeliefthatthecandidatewasalive,qualified, oreligible,theyshouldnotbetreatedasstray,voidormeaningless.(atpp.2021)

The May 15, 1995 resolution of the COMELEC en banc, suspending he obtain the highest number of votes of RepresentativeoftheSecondDistrictofMakati,MetroManila,purportstohavebeenissuedpursuantto6ofR.A. No. 6646. This provision authorizes the COMELEC to order the suspension of the proclamation "whenever the evidence of his guilt is strong." As explained in my separate opinion in G.R. No. 119976, however, this provision referstoproceedingsunder68oftheOmnibusElectionCodewhichprovidesforthedisqualificationofcandidates found guilty of using what in political parlance have been referred to as "guns goons or gold" to influence the outcome of elections. Since the disqualification of petitioner in this case was not sought on this ground, the applicationof6ofR.A..No.6646isclearlyagraveabuseofdiscretiononthepartoftheCOMELEC.

NormaythepetitiontodisqualifypetitionerintheCOMELECbejustifiedunder78oftheOECwhichauthorizesthe filingofapetitionforthecancellationofcertificatesofcandidacysincesuchapetitionmaybefiled"exclusivelyon thegroundthatamaterialrepresentationcontained[inthecertificate]asrequiredundersection74isfalse."There was no allegation that in stating in his certificate of candidacy that he is a resident of Amapola St., Palm Village, GuadalupeViejo,Makati,MetroManila,petitionermadeanyfalserepresentation.

For this reason, I am of the opinion that the COMELEC had no jurisdiction over SPA No. 95113 that its proceedingsinSPANo.95113,includingthequestionedorders,arevoidandthatthequalificationsofpetitioner AgapitoA.AquinoforthepositionofRepresentativeoftheSecondDistrictoftheCityofMakatimayonlybeinquired intobytheHouseofRepresentativesElectoralTribunal.

Thisconclusionmakesitunnecessaryformetoexpressmyviewatthistimeonthequestionwhether,intheevent the candidate who obtained the highest number of votes is declared ineligible, the one who received the next highestnumberofvotesisentitledtobedeclaredthewinner.

Accordingly, I vote (1) to grant the petition in this case and (2) to annul the proceedings of the Commission on ElectionsinSPANo.95113,includingthequestionedorders,datedMay6,1995.May15,1995,andthetwoorders both dated June 2, 1995, so far as they declare petitioner Agapito A. Aquino to be ineligible for the position of Representative of the Second District of the City of Makati and direct the City Board of Canvassers of Makati to determineandproclaimthewinneroutoftheremainingqualifiedcandidates.